Omari Iddi Mbezi & Others vs Republic (Criminal Application 31 of 2020) [2021] TZCA 474 (14 September 2021)

RULING OF THE COURT 6h July & 14 September, 2021 KENTE, ].A.: The applicants namely Omari Iddi Mbezi, Victor Charles @Mpiga Picha and Abdallah Isiaka @ Manila (henceforth the first, second and third applicant respectively) appeared before the District Court of Morogoro where they were charged and subsequently convicted of the offence of armed robbery contrary to section 2B7A of the Penal Code, Cap 16 Revised Edition, 2002. They were each sentenced to thirty (30) years imprisonment together with twelve strokes of the cane. 7 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LILA. J.A.. KOROSSO. T.A.. And KENTE,I.A.) CRTMTNAL APPUCATTON NO. 3U01 OF 2020 OMARI IDDI MBEZI.. ...............1S APPLICANT VICTOR CHARLES @ MPIGA PICHA ..........2ND APPLICANT ABDATLAH ISIA!(A @ MANILA 3RD APPLICANT VERSUS THE REPUBTTC ................. ...... RESPONDENT (Application for review of the decision of the Coutt of Appeal of Tanzania at Dar es Salaam) (Lila. Wambali, Korosso lJ.A'l Dated 6h day of Aprit, 2020 tn Criminal Aooea! No. 214 of 2Ol7 Aggrieved by the said conviction and sentence/ they unsuccessfully

appealed to the High Court of Tanzania at Dar es Salaam Registry. The dauntless applicants further appealed to this Court but as it turned out, the odds were, once again, not in their favour. On 5th May, 2020 their appeal was dismissed by the Coutt (Lila, Wambali and Korosso, JJ.A.) for lack of merit. In a clear demonstration of unflinching determination, by way of a Notice of Motion, pursuant to Rule 66(1) and (b) Tanzania Coutt of Appeal Rules, 2019 (the Rules), they lodged the present application seeking for review of the above mentioned judgment of this Court. The application is suppofted by three affidavits respectively deponed to by the applicants. The grounds raised by the applicants in support of their application are cleady stated in the Notice of Motion. We think it is apposite to reproduce them as hereunder:-

1. The decision was based on manifest errors on the face of the record which resulted into miscarriage of justice to the applicants as:- 2

(i) The evidence of visual identification of the crime for ft and Zd applicants was not wateftight. (ii) The Court applied double standards in upholding conviction for its 1n and Zd appticants based on visual identification made at the crime of scene. (iii) The doctrine of recent possession that was used to impticate the P applicant was not proved to the hilt. (iv) The case was not proved beyond reasonable doubt as (a) The used catridges from gunshots were not recovered at the scene to substantiate that gun were used at the scene. (b) Seizure notice under section 38 (3) of the CPA was not prepaid and tendered to substantiate that exhibit P.E.1 (shools) and PE4 (firearms) were recovered from ln and 2d appticants and are the 3

ones (firearm) used at the scene. (c) Ballistic expert report was tendered to prove that firearms were working propeily and may be were used at the incident. (v) Facts of the case was not read to Zd apptication on 13.3.2007 (at page 34-36 of the court records). The respondent, the Director of Public Prosecutions, in its turn, strongly opposed the application by filing an affidavit in reply. The same was sworn by Ms. Nancy Mushumbusi, learned State Attorney. Essentially, in her affidavit, the learned State Attorney disputed every material averment made by the applicants contending that they should be put to strict proof thereof. At the hearing of the application, the applicants appeared in persons fending for themselves, whereas, respondent was represented by Ms. Nancy Mushumbusi learned State Attorney. On being invited to expound on the grounds in suppoft of the application, the applicants had nothing meaningful to say. They only 4

adopted the contents of their affidavits and urged the court to allow the application. In addition, in what seems to be an invitation to this Court to ovedurn its decision, the first applicant implored us to quash the said judgment, set aside the sentence and set him free. Submitting in reply, Ms. Mushumbusi learned State Attorney sought to build her case on the argument that, essentially what the applicants had lodged In Court was a disguised appeal. She also defended the judgment of this Court which had finally put to rest the applicants' relentless efforts to overturn the concurrent decisions of the two courts below. According to the learned State Attorney, all the grounds advanced by the applicants in support of the present application were considered by the Court and found to have no merit. With regard to the contention by the applicants that the impugned decision of the Court was based on manifest errors on the face of the record, the learned State Attorney referred us to the case of George Mwanyingile v. The Director of public prosecution, Criminal Application No. 2716 of 2019 (unreported) in which we held that, a manifest error must be an error that is clear, obvious and patent, the one which does not need to be established by a long drawn process of 5

Yosipati v. R. Criminal Application No. 90/07 of 2019 (unrepofted). In the latter cited case, the Court cited with approval an extract from the Commentary on the Indian Code of Civi! Procedure, 19O8 14u'Edition that: " An error apparent on the face of the record must be such as can be seen by one who runs and readE that is, an obvious and patent misbke and not something which can be established by a long drawn process of reasoning on poinb on which there may conceivably be two opinions". The learned State Attorney drew our attention to Rule 66(1) of the Court of Appeal Rules, 2019 which deals with all applications of the present nature. She said that the applicants have fallen short of the required legal threshold to warrant review of the impugned decision of the Court. Ms. Mushumbusi thus implored us to dismiss the application for lack of merit. Given the above competing arguments and in view of the single ground of complaint raised by the applicants, we think it is appropriate 6 reasoning. She also cited to us the case of Emmanue! Kondrad

7 at this juncture, to cite in extensor the provisions of Rule 66(1) (a) on which the application is predicated. It reads as follows: 66 (1) The Couft may review its judgment or order, but no application for review shall be entettained except on the following grounds: (a) The decision was based on a manifest effor on the fae of the record resulting in the miscarriage ofiustice. The question which falls for determination here is whether or not, the applicants have shown, albeit on a balance of probabilities that, there was an error on the face of the record in respect of the judgment of this Couft In Criminal Appeal No. 214 of 2017 which was handed down on 6b April, 2020. Upon anxious and careful consideration of the above-posed question, we are satisfied that the application before us has failed to meet the requirements for purposes of review. In our opinion, the applicants have failed to demonstrate the existence of the main ground of complaint as contained in the Notice of Motion as we shall hereinafter demonstrate.

As it will be noted at once, the general complaint by the applicants that the decision of the Court dismissing their appeal was based on manifest errors on the face of the records which resulted into a miscarriage of justice, is followed by a list of grievances on which the applicants are virtually seeking to challenge the earlier decision of this Court. To recapitulate, the applicants had complained in the Notice of Motion that, one, the evidence of visual identification was not watertight. Two, that the Court had applied double standards in upholding their convictions. Three, that the doctrine of recent possession which was invoked to implicate the third applicant was not proved to the required standard and finally that, all in all, the case against them was not proved beyond reasonable doubt. With regard to the reason as to why the case against them was allegedly not proved to the required standard, the applicants are now contending thus: a) The used catridges from gunshots were not recovered at the scene to substantiate that guns were ured at the scene. b) Seizure notice under section 38(3) of the CPA was not prepaid (sic) and tendered to substantiate

that exhibit PE.l (shools) and PE 4 (firearms) were recovered from ln and Zd appticants and are the ones (firearms) used at the scene. c) Ballistic expert repoft was tendered to prove that firearms were working properly and may be were used at the incident. d) Facts of the case was not read to Zd appticant on 13.3.2007 (at page 34-36 of the couft records). It should be noted that, in its judgment which is sought to be reviewed, this Couft had summarized the grievances of the applicants as contained in their memorandum of appeal, as follows: 9 "All the appellants filed a joint memorandum of appeal with 17 grounds which have been paraphrased and now read as follows: First, Insufficiency of evidence on visual identification against all the appellants (found in grounds 1, 5, 9, 70, 11 and 12). Second, confessions of the ln 2d ld lh and 7 appellants relied upon by the trial court in convicting appellants and the first appellate couft in upholding convidion were recorded and admiffed un-procedurally (grounds 3 and 4). Third, failure of the trial and first courts to address inconstancies,

discrepancies and contradidions in prosecution witnesses' testimonies and thus find their evidence questionable and lacking in credibility (grounds 2, 6, 13, 14 and 15). Foutth, admissibility of exhibits without following procedures (ground B). Sixthl failure to consider the defence evidence (ground 16) and seventh, failure to enter Pleas upon substitution of the charge against the appellants (ground 17). " Having analysed at length the evidence on record, the Couft "We are of the considered view that the charges levelled against Omari Mbezi, Wdor Charles @ Mpiga Picha and Abdalla Isiaka @ Manila (ln Zo and fl appellants) were proved to the standard required. Therefore their appeal lacks merit and is dismissed in its entirety", and in view of the applicants' several complaints all clustered around one main ground of review, the impression we get from the position taken by the applicants in the instant application is that the Court 10 went on concluding thus: The above-quoted being the considered decision of the Court,

should now sit as an appellate Court, re-asses the evidence and determine the correctness or otherwise of its earlier decision. Obviously it is for this reason that, in his brief rejoinder, the first applicant implored us to quash the impugned decision of the Court and order for his immediate release from prison. With due respect, we are not prepared to usurp the jurisdiction which we do not have. As amply demonstrated, the applicants have not shown how the decision of the Couft dismissing their jointly preferred appeal was based on what they claim to be manifest errors Court Rules. It follows therefore that, we cannot indulge ourselves into an exercise which would amount to this Court reconstituting itself into an appellate couft thereby extending to the applicants an undue advantage by treating them differenfly from other convicts who might have finally decided to contend with their convictions and serve the sentences. resemblance to the present one that, a judgment of the court is final 11 on the face of the record as envisaged under Rule 66 (1) (a) of the There is one reason why we strongly hold the above opinion. It has been the stance of the Court in any application that bears some

and review of such judgment is an exception. Moreover, it is the position of the law that, a court will not sit as a Court of Appeal from ground that one of the pafties in the case conceived himself to be aggrieved by the decision. For, it would be intolerable and most prejudicial to the public interest if cases once decided by the Court could be re-opened and re-heard. (See Blue Line Enterprises Ltd V. East African Development Bank (EADB) Civil Application No. 21 of Having said so, we find ourselves inclined to agree with Ms. Mushumbusi that indeed, the applicaUon before us is nothing but a disguised appeal. While we are live to the fact that each application for review will always be treated by the Court according to its own merit, we wish to remark in passing that, if not sparingly invoked, in deserving cases, as it has always been the case, the ripple effect of Rule 66 (1) of the Court Rules would have been an avalanche of similar applications preferred by the disgruntled convicts. Taken as a whole, we find that the applicants have raised the same complaints which they had raised and were canvassed by the 12 its own decisions, nor will it entertain applications for review on the 2012.

Court in the impugned judgment. We thin( with due respect, this misapprehends the good purpose of Rule 66 (1) (a) which is to ensure that a Court's decision is free from plain errors resulting into a gross unfair outcome in a judicia! proceeding. AII said and done, we find the application before us to have no merit and we accordingly dismiss it. It is so ordered. DATED at DAR ES SALAAM this 6th day of September, 202L. S. A. LILA JUSTICE OF APPEAL W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Ruling delivered this 14h day of September, 202t, in the Presence of Appellants in person and Ms. Nura Manja, learned State Respondent/Republic, is hereby ceftified as a true F. DEPUW REGISTRAR COURT OF APPEAL 13