Mychel Andriand Takahindangeng vs Republic (Civil Application No. 61/01 of 2022) [2024] TZCA 1100 (14 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA. J.A.. MWANDAMBO, 3.A. And MGONYA. 3.A.) CRIMINAL APPLICATION NO. 61/01 OF 2022 MYCHEL ANDRIAND TAKAHINDANGENG ............................... APPLICANT VERSUS THE REPUBLIC....................................... ................ .......RESPONDENT (Application for review of the judgment of the Court of Appeal of Tanzania at Dar es Salaam) (Lila. Kitusi, Mashaka, JJA.) dated the 10thday of August, 2022 in Criminal Appeal No. 76 of 2020 RULING OF THE COURT 30th April & 14th November, 2024 MWANDAMBO. J.A.: The applicant lost his battle in Criminal Appeal No. 76 of 2020 in which he challenged his conviction and sentence by the High Court, sitting at Dar es Salaam on the information of Trafficking in Narcotic Drugs. In a judgment delivered on 11 August 2022, the Court dismissed the applicant's appeal upon being satisfied that it was bereft of merit. It thus upheld the decision of the trial High Court on both conviction and the resultant life sentence imprisonment. The applicant was aggrieved by the said decision. He has now moved the Court under section 4 (4) of the Appellate Jurisdiction Act (the AJA) and rule 66 (1) (a) and (b) of the Tanzania Court of Appeal Rules, l

2009 (the Rules) for two related orders, to wit; review of the Court's decision dated 10 August 2022 and, to reverse its decision and/or quash the conviction, set aside sentence and release him from prison. The above orders are predicated upon two grounds. Paraphrased, the grounds are: (1) the decision of the Court was based on manifest error on the face of the record resulting in miscarriage of justice and (2) the applicant was wrongly deprived of an opportunity to be heard on the 3r d and 8th grounds in the supplementary memorandum of appeal as they were not discussed and determined by the Court. The applicant's affidavit annexed to the notice of motion in support of the application gives particulars of the grounds relied upon to warrant the order sought. The respondent Republic resists the application through an affidavit in reply deponed to by Michael Lucas Ng'hoboko, learned Senior State Attorney who, together with Ms. Hakme Pemba and Ms. Jenila Rugalama, learned State Attorneys, appeared at the hearing. Ahead of the hearing, the applicant lodged in Court his written submissions and a formidable list of authorities in his quest to secure the orders sought in the notice of motion. In the course of the written submissions, the applicant abandoned two of the particulars in items (b) and (c) constituting the 1s t ground in the notice of motion. At the hearing,

the applicant appeared in person and urged the Court to grant the application. The applicant began his written arguments with the 2n d ground but we find it convenient to address the grounds as they appear in the notice of motion by starting with the 1s t ground. Before doing so, we consider it necessary to preface our discussion with the general legal framework as it relates to the Court's power of review. This has become necessary due to some of the arguments placed before us by the applicant particularly on the 2n d ground on the extent to which the Court can go in its determination of the application for review. As it will become apparent later, the applicant has urged the Court to examine not only the judgment but also a supplementary memorandum of appeal placed before the Court at the hearing of the appeal whose decision is now challenged in this application, Our starting point is section 4 (4) of the A3A which vests power in the Court to review its decisions exercisable in accordance with rule 66 of the Rules. Once the Court is satisfied that the impugned decision was reached as a result of any of the grounds set out in rule 66 (1) of the Rules, such decision may be reversed, modified or if warranted, be quashed with an order for a rehearing of the appeal or an application from which the impugned decision arose. An application for review follows the same pattern

as other applications covered by rule 48 of the Rules which must be by way of notice of motion supported by one or more affidavits in support. Now back to the grounds. The first of the grounds is premised on the alleged error manifest on the record. After abandoning two of the limbs in the 1s t ground the remaining two limbs are: (a) failure to scrutinize the applicant's complaint that exhibit P5 was tampered with for being labelled by unknown people and (b) that the Court based its decision on the applicant's statement which was not admitted in evidence. His submission on the first limb was premised on the Court's remark at page 11 and 18 of its judgment where it expressed some shadow of doubt on the absence of the person who labelled the four packets constituting exhibit P5 seized from the applicant at Julius Nyerere International Airport (JNIA). We understood the applicant as challenging the integrity of the chain of custody for which he contended that the Court failed to address itself properly and for that reason he invited us to expunge exhibit P5 from the record. From the face of it, the ground is directed against the correctness of the Court's decision dismissing the applicant's appeal predicated upon his challenge on exhibit P5. Mr. Ng'hoboko argued that the complaint does not relate to a reviewable error manifest on the face of the record. Rather, a dissatisfaction against the impugned decision considering that the issue pertaining to 4

exhibit P5 was sufficiently discussed by the Court on appeal. To buttress his argument he referred us to the Court's decision in Ruby Roadways T. Ltd v. PUMA Energy Tanzania Limited (Civil Application No. 349/01 of 2022) [2024] TZCA 160 (TANZLII 1 March 2024) for the proposition that, an error must be self-evident on the record to sustain a complaint predicated upon rule 66 (1) (a) of the Rulles. We have asked ourselves about the tenability of this ground in the light of the scope of review discussed in numerous Court's decisions. It is settled and we have no doubt that the applicant is well aware that an error manifest on the face of the record amenable to review is not the same as an erroneous decision which is amenable to an appeal. There is no dearth of authorities in this regard such that it may not be necessary to cite any. For the applicant's benefit, we will refer to only a few of them. The parameters of a reviewable error manifest on the face of the record were set out in the oft quoted Court's decision in Chandrakant Joshubai Patel v. Republic [2004] T.L.R. 218 and subsequently in Patrick Sanga v. Republic (Criminal Application No. 8 of 2011) [2013] TZCA 473 (5 August 2013). In Patrick Sanga, the Court stressed that, review is not a second chance for disguised appeals in the hope that the Court will re-hear the appeal. See also: Tanganyika Land Agency Limited & 7 Others v. Manohar Aggrwal, Civil Application No. 17 of 2008 (unreported).

Looking at the impugned decision, it is glaring that, the Court dealt with all the complaints surrounding exhibit P5 largely predicated on chain of custody before concluding that, at no point was the chain of custody of the contents of exhibit P5 tampered with to render it evidentiary worthless. The applicant's quest to review the impugned decision on the ground connected with the alleged failure to scrutinize evidence properly serves no other purpose than asking the Court to sit on its judgment which is not permitted by the AJA. There is simply no power in the Court sitting on appeal from its decisions. As the Court said in Charles Barnabas v. Republic (Criminal Application 13 of 2009) [2010] TZCA 111 (15 March 2010), a review cannot be invoked to challenge the merits of a decision but to address irregularities in the decision or proceeding which have occasioned injustice. Certainly, failure to scrutinize evidence is not an irregularity in the decision warranting a review. Consequently, this ground fails for being misconceived. The applicant's second limb in the 1s t ground alleges that in dismissing his appeal, the Court based its decision on his statement which was not admitted in evidence. The applicant has picked a paragraph at page 19 of the impugned decision where the Court considered his conduct mentioning someone Emmanuel as a person with whom he was in association in the illicit business. From that paragraph, the applicant has picked two issues 6

allegedly not properly scrutinized hence constituting error on the face of the record that is; (1) lack of proof that he suggested to PW2 and PW3 his association with Emmanuel and (2) whether it was correct that he never denied or confirmed that he was in league with the said Emmanuel. From those two issues or points as he calls them, the applicant makes a lengthy argument faulting the Court for making that conclusion suggesting that, in doing so, the Court shifted the burden of proof to him instead of the prosecution. Yet again, Mr. Ng'hoboko urged the Court to find the complaint baseless as there was no evidence that the court relied on the applicant's statement in dismissing his appeal. Upon our unruffled consideration of the applicant's complaint and the submissions in support, we are satisfied that the applicant has not made out a case supporting his ground. It is glaring from the submission that; the complaint is not based on an error in the decision. His complaint is against the alleged failure to re-evaluate evidence properly hence an erroneous decision dismissing his appeal. We need not delve further on this but to stress that, such a complaint is fit in an appeal and not in an application for review. Quite unfortunate to the applicant, there is no appeal against the Court's decision and which is final. At any rate, as we said in the oft quoted Chandrakant Joshubai Patel (supra) for an error to qualify for a review, it must be manifest, self-evident to a person who reads while running and

not one which will require long drawn arguments to discover. The applicant's complaint has failed to meet that test and that is evident from the arguments placed before the Court. Without further ado, we find no merit in this ground and dismiss it. Next on the 2n d ground premised on rule 66 (1) (b) of the Rules that is, the Court wrongly deprived him of the opportunity to be heard. As intimated earlier, the complaint in this ground is against the alleged failure by the Court to determine the 3r d and 8th grounds in the applicant's supplementary memorandum of appeal. The applicant laments that the Court omitted to consider the two grounds and annexed to his affidavit copies of the supplementary memorandum of appeal (annex A) as well as the submissions placed before the Court in the appeal (annex B). In relation to the omission to consider his 3r d ground in the supplementary memorandum of appeal, the applicant argues that he challenges his conviction for relying on exhibit P5 and argues that none of the witnesses proved to have seen the contents therein but the Court never addressed his complaint in its judgment. He goes on to pick pieces of evidence which he contends that were contradictory involving PW5, PW6 and PW7 despite which, the Court paid no regard in its judgment. According to him, had the Court addressed that ground and re- apprised evidence, it should have found that there was absence of evidence proving the contents 8

of the four packets comprising exhibit P5 amongst the witnesses who allegedly seized the packets. This, he argues, dented the integrity of the chain of custody which entitled him to an acquittal. On the other hand, the applicant faults the Court for failure to consider the 8th ground in the supplementary memorandum grounding conviction on exhibit P5 made of four packets of narcotic drugs and P6 constituting the bag for being wrongly admitted during the trial. It is contended that, despite the extensive written arguments in that ground, the Court did not consider it at ail in its judgment. The complaint in that ground was that the trial court grounded conviction on exhibits which were irregularly admitted during the trial. According to the applicant, the Court's failure to consider his complaint on the irregular admission of the unlisted exhibits was fatal to its decision. It is contended that, without such failure, the Court would not have sustained his conviction for iack of evidence. In support of this contention, the applicant drew the Court's attention to its previous decision in Remina Omary Abdul v. Republic, Criminal Appeal No. 189 of 2020 (unreported) for the proposition that, failure to list an exhibit during the committal proceedings or at the preliminary hearing is fatal to the prosecution case which has the effect of denying the accused the right to know his case in advance so as to prepare a meaningful defence.

On the other hand, the applicant argues that, failure by the Court to address itself to his grounds and determining his complaint against the admissibility on different aspects denied him his right to be heard warranting a review of its decision. In his quest to vindicate his complaint, the applicant invites the Court to examine the supplementary memorandum of appeal and the submissions he made before the Court allegedly omitted in the impugned judgment. Mr. Ng'hoboko brushed aside the applicant's complaints in the 2n d ground for being improperly raised since the same are not reflected in the judgment. Although the learned Senior State Attorney did not deny in his affidavit in reply and in the oral arguments before us that the 3r d and 8th grounds in the supplementary memorandum were not considered, his trump card was that, in the absence of any indication in the judgment attesting to that fact, the Court cannot go beyond it to gauge the correctness of the complaint. For that reason, he sought refuge to the Court's decisions on what constitutes a record for the purpose of review and argued that, it will be improper to resort to the copy of the supplementary memorandum annexed to the applicant's affidavit to support the complaint against the impugned decision. According to the learned Senior State Attorney, the Court cannot go beyond the impugned decision in determining an application for review. He urged us to dismiss the application.

We must confess at the outset that the determination of this ground has exercised our mind quite considerably. This is so in so far as it seeks to invite us to look at a copy the supplementary memorandum of appeal to find out whether indeed the Court wrongly deprived the applicant the opportunity to be heard in two of his grounds of appeal. It will be recalled that, in our judgment, we clustered the grounds in the original memorandum of appeal and the supplementary memorandum after the applicant had abandoned some of the grounds in the original memorandum. After merging the two sets of memoranda, the Court determined the appeal on seven issues. The 4th issue focused on the applicant's complaint against admission of exhibits P5 (the alleged drugs), P6 (the bag) and P7, statement of a witness who was not available to testify during the trial. We have no regret for not reproducing the applicant's grounds in both memoranda. We say so aware that, apart from the fact that we cannot make head or tail from reading the judgment alone in determining the 2n d ground, that approach contravened no law or rule it being a trite that composition of judgment is a matter of style. That said, to the extent it relates to a complaint based on manifest error on the face of the record, the Court has pronounced itself in this regard in its various decisions that the record, for such purpose, is no more than the decision sought to be reviewed. See for instance: Hon. Attorney

General v. Mwahezi Mohamed (As Administrator of the Estate of the late Dolly Mana Eustace) and 3 Others, Civil Application No. 314/12 of 2020 and Isaya Linus Cheng ula) v. Frank Nyika (As Administrator of the Estate of the late Asheri Nyika), Civil Application No. 487 of 2020 (both unreported). Later, the Court reiterated its stance in Blue Rock Limited and Another v. Unyangala Auction Mart Ltd. Court Broker and Another (Civil Application No. 69/2 of 2023 [2024] TZCA 8 (TanzLII 19 January 2024). It stated emphatically that, peeping into the record of appeal annexed to the affidavit would result in the Court in a smoke screened appeal of its own judgment thereby circumventing the principle against determining an application for review by examining documents beyond the impugned decision. The above is consistent with the fact that the Court's power in applications for review is limited to no more than the grounds set out in rule 66 (1) of the Rules. Be it as it may, as far as we are aware, the Court has not yet pronounced itself regarding material it will rely on in determining the other grounds in rule 66 (1) of the Rules. That includes cases where a party alleges that he was wrongly deprived of his opportunity to be heard as it were or that the impugned decision was procured illegally, or by fraud or perjury. The authorities cited to us by Mr. Ng'hoboko resisting the application and 12

many others on which we have laid our hands are only relevant to applications where the ground of review involves manifest error on the face of the record per se. We are confronted with a complaint in this application whereby in his 2n d ground of review, the applicant alleges that he was wrongly deprived of opportunity to be heard for failure to consider his 3r d and 8th grounds in the supplementary memorandum. Unfortunately, Mr. Ng'hoboko was not helpful to the Court with authorities dealing specifically with situations like the instant one. Neither did he make any suggestion on how would the Court determine the complaint in the 2n d ground by looking at the judgment alone in a situation where the grounds are not reflected in the judgment It will be recalled that, the learned Senior State Attorney did not deny the grounds in the supplementary memorandum of appeal as well as the arguments in the applicant's statement of written arguments, in particular, on the complaints in the 3r d and 8th grounds of appeal. Before delving into any discussion to accept or decline the applicant's invitation to examine copies annexed to his affidavit, we shall discuss the first limb of the complaint regarding the alleged failure to consider the 3r d ground. This is because we do not think that will require examination beyond the judgment itself.

After scanning through the impugned judgment, we are settled that the complaint on the alleged failure to consider the 3r d ground is farfetched it being premised on a dissatisfaction against the form rather than the substance of the impugned judgment. At this juncture we think it will be worthwhile reminding the applicant that mere dissatisfaction with the judgment is not and must not constitute a ground for review. This what we said in Peter Ng'omango v. Gerson A. K. Mwanga, Civil Application No. 35 of 2002 cited in numerous decisions not least, Shadrack Balinago v. Fikiri Mohamed Hamza and Others, Civil Application No. 25 of 2019 (both unreported) thus: "It is no gainsaying that no judgment, however elaborate it may be can satisfy each o f the parties involved to the full extent There may be errors or inadequacies here and there in the judgment But these errors would only justify a review o f the Court's judgment if it is shown that the errors are obvious and patent." From our examination of the impugned judgment in particular, at page 8 and 9, it is discernible that, largely, the 3r d ground of appeal focused on the complaint on the alleged broken chain of custody of exhibit P5, subject of his conviction. The applicant's criticism was premised on the argument that none of the witnesses (PW5, PW6 and PW7) who were involved in the seizure of the narcotics said anything on the contents of the 14

4 packets seized from him at the JNIA. Having examined the judgment, we note that the Court discussed at great length the complaint which features in the consideration of the 2n d , 3r d and 4th areas of the issues identified for its determination. Indeed, it is clear from page 6 of the judgment that the learned State Attorney for the respondent Republic combined her arguments on the 2n d and 5th grounds of appeal in the original memorandum of appeal together with the 3r dground in the supplementary memorandum. The Court considered the grounds the best it could and dismissed them upon being satisfied that they were devoid of merit. As alluded to earlier, the complaint is more against the form in which the Court dealt with it rather than its substance and we find it deficient. The complaint on that aspect is accordingly dismissed. Next is on the second limb in the 2n d ground. Admittedly, unlike the first limb, the determination of the second limb cannot be made on the basis of the judgment alone. We have been invited to determine the complaint by looking at the supplementary memorandum of appeal to determine whether the applicant was indeed wrongfully deprived of opportunity to be heard. The learned Senior State Attorney invited us to refrain from determining this complaint by examining copies of the supplementary memorandum and the supporting written arguments.

We appreciate that the applicant raises a very serious complaint in the 2n d ground involving wrongful deprivation of the opportunity to be heard. However, in view of the general principle discussed earlier that the Court's power to review its own decision is limited to the record of appeal, which, for review purposes, is the decision sought to be reviewed, the complained deprivation of the right to be heard must be apparent on the face of the decision subject of review. We reiterated that stance in Mashaka Henry v. The Republic, Criminal Application No. 2 of 2012 (unreported) that, "it is only when the error is apparent on the face of the record that it becomes a good ground for review In the instant application, the applicant relied on other documents which are not part of the decision subject of review to build up his case. He is in a way inviting the Court to consider other matters beyond the decision which, in our firm view, is an attempt to move the Court to again sit on appeal on a matter it had already determined after consideration of the grounds of appeal before it and came up with a different view. That is tantamount to sitting on appeal against its own decision. We regret that are not ready to be so moved as that will amount to going contrary to the general rule that as a matter of public policy, litigation must have an end, a position restated in the case of Ezekiel Kapugi v. Abdallah Mambosasa, Civil Application No. 135 of 2016 which quoted, with approval, a portion of

the decision in Raja Chand Lall Chaudhary v. Surkhraj Rai (AIR 1941 SCI) cited in Mashaka Henry v. The Republic (supra) that: - "There is a salutary maxim which ought to be observed by ai! Courts o f last resorts: Interestei republicae ut sit finis litium. It concerns the State; that there be an end o f law suits..." In the final analysis, we agree with the learned Senior State Attorney that the application is without merit and it is hereby dismissed. DATED at DAR ES SALAAM this 13th day of November, 2024. S. A. LILA L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 14th day of November, 2024 via video link at Ukonga Prison in the presence of the appellant who appeared in person and Ms. Edith Mauya, learned Senior State Attorney for the respondent/Republic; is hereby certified as a true copy of the original. JUSTICE OF APPEAL LJ . S. MWANDAMBO JUSTICE OF APPEAL