Deogratius Martin Kachangaa and 2 Others vs Director of Public Prosecutions (Criminal Application No. 1 of 2013) [2017] TZCA 1144 (13 December 2017)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: MJASIRI, J.A., MWARIJA, J.A., And MWANGESI, J.A.) CRIMINAL APPLICATION NO-. 1 OF 2013 DEOGRATIUS MARTIN KACHANGAA DIDAS DANIEL PROCHES PETER@ PII ............................................................. APPLICANTS VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS ............................. RESPONDENT (Application for review of the Judgment of the Court of Appeal of Tanzania at Arusha) 7 th & 15 th Dec. 2017 MWARIJA, l.A.: (Msoffe, Oriyo And Mussa, JJ.A) Dated 24 th day of June, 2013 in Criminal Appeal No. 5 of 2013 RULING OF THE COURT This is an application for review brought by the applicants, Deogratius Martin @ Kachangaa, Didas Daniel and Proches Peter @ Pii. They have moved the Court to review its decision dated 24/6/20713 made in Criminal Appeal No. 5 of 2013 (the Decision). The background facts giving rise to the Decision can be briefly stated as follows:- 1

The applicants were jointly charged in the District Court of Arusha with the offence of Armed Robbery contrary to section 287A of the Penal Code [Cap,. 16 R.E. 2002J_(the eenaLCode-).- -T-he--particulars·of1:ne-charge-were-- - - -

that on 29/2/2008 at 20.30 hrs at Sombetini area within Arusha Municipality, the applicants stole one motor vehicle Reg. No. T890 APP make Suzuki Vitara and other properties total valued at shs.14,000,000/=, the properties of one Melance Kisoka. It was alleged further that in committing the offence the applicants used a pistol to obtain and retain the stolen properties. On his part, the 2 nd applicant was also charged with an alternative offence of receiving stolen property contrary to section 311 of the Penal Code. It was alleged that he received the said stolen motor vehicle knowing or having reason to believe that the same had been stolen. After a full trial, the trial Court was of the view that the prosecution had failed to prove beyond reasonable doubt both the charge of armed robbery and the alternative count. The applicants were found not guilty and were thus acquitted. The respondent/Director of Public Prosecution was aggrieved by the decision of the trial court. He successfully appealed to the High Court at 2

·--- Arusha vide Criminal Appeal No. 37 of 2010. In its decision which was handed down on 4/7/2012, the High Court (Sambo, J as he then was), fou!l_c! __ _

---- -· ---- - _jgte,:_a/iathatthe-learned-tfiaTResidenf Magistrate erred in law in refusing to admit in evidence the motor vehicle inspection report (the Report) which was sought to be tendered by the prosecution on the ground that the witness, PW7 Hosea G. Kihwelo, a Police Officer who prepared it was not competent to tender it. The High Court found that the witness, who was at the material time a ,Photographer registered under S. 202 (1) of the Criminal Procedure Act, [Cap. 20 R.E.] (the CPA) and a gazzetted officer, was competent to do so. It proceeded to allow the appeal, quash the proceedings and judgment of the trial court and ordered the case to be heard de nova before another Resident Magistrate of competent jurisdiction. The applicants were dissatisfied with the decision of the High Court. They unsuccessfully preferred an appeal to the Court, Criminal Appeal No 5 of 2013. The appeal was not heard on merit. The Court wanted to satisfy itself as to whether or not the decision of the High Court ordering a retrial of the case was appealable. After having heard the learned counsel for the 3

applicants and the learned State Attorney who appeared for the respondent and after having considered the provisions of 5.5 (2) (d) of the Appellate -Jurisd1d:ion Act [Cap. 141 R.E. 2002] (the AJA), the Court found that, since the order of the High Court did not finally determine the criminal charge, the same was not appealable. The applicants were aggrieved by that decision hence this application for review. They have fronted the following grounds in their notice of motion: "1. The decision to strike out the appeal was based on a manifest error on the face of the record that the decision in High Court Criminal Appeal No. 37 of 2011 did not finally determine the criminal charge and thus resulting in miscarriage of Justice to the applicants. 2. That the decision to strike out the appeal wrongly deprived the applicants of their right to be heard." Although differently expressed, these grounds have been repeated in the applicants' supporting affidavit sworn by their counsel, Mr. John Materu as follows:- 4

◄------ ---------· - "(i} That this Honourable Court erred in law when it failed to consider the fact that there was no ~ -- . criminal charge before the _fjigh-Goartwcle

Cdminal-AppealNo. 37 of 201 o.

{ii) That this Honourable Court erred in law in holding that appeal is incompetent as the High Court order did not effectively determine the criminal charge. {iii} That this Honourable Court's decision wrongly deprived the Applicants of their right to be heard." At the hearing of the application, the applicants were represented by Mr. John Materu, learned counsel while the respondent had the services of Ms. Alice Mtenga, learned State Attorney. Submitting in support of the ground that the decision was based on manifest error on the face of the record resulting in miscarriage of justice to the applicants, Mr. Materu argued that the Court erred in its decision because the order of the High Court determined the appeal. He submitted that what was before the High Court was an appeal not a criminal charge. He stressed that the Decision was for that reason, based on manifest error on the face of the record. He added that the applicants had properly exercised their 5

right of appeal to the High Court as stipulated under Part X of the CPA and S. 6 (7) (a) of the AJA, the right which is guaranteed by Art. 13 of the

---

ConstittJtion. otthe-Llni-ted-Republic ofTan-zani-a~ -

Submitting further, Mr. Materu argued that the Decision is erroneous because S.5 (2) (d) of the AJA which was invoked by the Court relates to civil, not criminal appeals. Relying on the decision of the Court in the case of Habiba luma & 3 Others v. The Republic, Criminal Appeal No. 314 of 2016 (unreported), Mr. Materu urged us to vacate the Decision and return the record to the High Court with an order that the struck out appeal be heard on merit. With regard to the complaint that the Decision wrongly deprived the applicants of their right to be heard, Mr. Materu submitted that, by striking out the appeal in which the applicants had contested the finding that the witness (PW7) was competent to tender the Report, the High Court blocked the applicants' opportunity to be heard on the matter. Citing the cases of Muhidin Ally@ Muddy & 2 Others v. The Republic, Criminal Application No. 2 of 2006 and John Martin @ Marwa v. The Republic, Criminal Application No. 20 of 2014 (both unreported), the learned counsel submitted 6

that in the exercise of its review jurisdiction, the Court has the power of reversing its decisions.

• • • -- - fvls: Mtenga opposed the sub-mission made by the learned counsel for the applicants. She argued in her reply submission, firstly, that the Decision was not based on manifest error on the face of the record and secondly, that the applicants were not deprived of their right to be heard in the appeal. Expounding her argument on the first aspect of her submission, the learned State Attorney contended that the applicants' counsel has not pointed out any error which is apparent on the face of the record so as to support his contention or state the grounds of his complaint. She argued that the applicants are in essence challenging the finding of the Court to the effect that the decision of the High Court did not conclusively determine the criminal charge. According to the learned State Attorney, what has been raised by the applicants is a ground of appeal. She added that the Court properly raised the issue whether or not by virtue of 5.5 (2) (d) of the AJA, the appeal was competent and after hearing the counsel for the parties, it struck out the appeal for being incompetent. 7

On the second ground contending that the applicants were deprived of the right to be heard, Ms. Mtenga stated that the appeal was determined on the point of law after both parties had been afforded the right of hearing. For this reason, she contended, no miscarriage of justice was occasioned. As to the cases cited by the learned counsel for the applicants, Ms. Mtenga argued that the same are distinguishable. In rejoinder, Mr. Materu countered the arguments made in reply by the learned State Attorney. He submitted that the grounds raised in the review are not intended to re-argue the appeal as the same was not heard on merit, but that it was determined on the basis of the point of law raised suo motu by the Court. He reiterated his argument that the striking out of the appeal on the ground of incompetence was erroneous, firstly, because what was in the High Court was not a criminal charge and secondly, because S. 5 (2) ( d) of the AJA provided for civil, not criminal appeals. Relying on the meaning of the word ''interlocutory" as defined in Black's Law Dictionary, Mr. Materu argued further that the decision of the High Court was not interlocutory because it determined the appeal conclusively. 8

From the submissions of the learned counsel for the parties, two main issues arise for determination; firstly, whether or not the Decision was based on _!llanifest errocon_tbe-faGe-ef-tr.e-record--resuitingTn miscarrTage of justice

to the applicants and secondly, whether or not by striking out the appeal, the Court deprived the applicants of their right to be heard. According to the notice of motion and the supporting affidavit, the grounds of the review were based on paragraphs (a) and (b) of Rule 66 (1) of the Rules which provide as fol lows:- "66 (1) The Court may review its judgment or order, but no application for review shall be entertained except on the following grounds: (a) the decision was based on manifest error on the face of the record resulting in the miscarriage of justice; or {b) a party was wrongly deprived of an opportunity to be heard. " Before we proceed to answer the two issues, we find it apposite to state the guiding principles in the exercise by the Court, of its review jurisdiction. The following are some of the principles which emanate from decisions of our courts and other courts outside our jurisdiction. They are 9

stated by the East African Court of Justice (Appellate Division) in the case of Angella Amudo v. The Secretary General of the East African Community, Civil Application No. 4 of 2015 (unreported) as follows: "(a) The principle underlying a review is that the court would not have acted as it had, if all the circumstances had been known ..... (b) There are definite limits to the exercise of the power of review. The review Jurisdiction is not by way of an appeal. The purpose of review is not to provide a back door method to unsuccessful litigants to re-argue their case. Seeking the re-appraisal of the entire evidence on record for finding the error, would amount to the exercise of appellate Jurisdiction which is notpermissible ..... (c) The power of review is limited in scope and is normally used for correction of a mistake but not to substitute a view in law. This is because no Judgment however elaborate it may be can satisfy each of the parties involved to the full extent . .... ( d) A Judgment of the final court is final and review of such Judgment is an exception. 10

(e) In review jurisdiction, mere disagreement with the view of the judgment cannot be ground for invoking the same. As long qs the _poin_t is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction ..... (f) There is a clear distinction regarding the effect of an error on the face of the record and an erroneous view of the evidence or law. An erroneous view justifies an appeal. Therefore, the power of review may not be exercised on the ground that the decision was erroneous on merit . .... (g) It will not be sufficient ground for review that another judge would have taken a different view. Nor can it be a ground for review that the court preceded on incorrect exposition of the law . .... (h) A Court will not sit as a court of appeal from its own decisions, nor will it entertain applications for review on the ground that one of the parties in the case conceived himself to be aggrieved by the decision. It would be intolerable and most prejudicial to the public interest if cases 11

once decided by the court could be re-opened and re-heard ..... (i} The term 'mistake or error on_the_laGe •Of-the------ ----------- --- record'byit; very~~~n~~atio; signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elaboration either of the facts or the legal position. If an error is not self-evident and detection thereof requires a long debate and process of reasoning, it cannot be treated as an error on the face of the record To put it differently, it must be such as can be seen by one who writes and reads ..... " Now, to answer the first issue, as shown under principle (i) above, for a mistake to constitute a manifest error on the face of the record as envisaged under Rule 66(1) (a) of the Rules, such an error must be "evident per se from the record" it must not require opposing arguments involving analysis of facts or the law. If it so requires, then it will no longer be a ground of review but one of appeal. As stated in the case of Karim Ramadhani v. R, Criminal Application No. 25 of 2012 (unreported):- 12

" ... it is not sufficient for the purposes of paragraph (a) of Rule 66(1) of the Rules, for the applicant to --- ,77erely allege-that final-appellate-decision- of the Court was based on a manifest error on the face of the record, if his elaboration of those errors disclose grounds of appeal rather than manifest error on the face of the decision'~ In the present case, the Court determined the appeal on the point of law after hearing arguments from both learned counsel for the parties. It found that since the decision of the High Court did not determine the charge, the appeal was incompetent. The contention by Mr. Materu that what was in the High Court was an appeal, not the Criminal charge and the argument on the scope of the provision of S. 5(2) ( d) of the AJA before amendment are, as submitted by Ms. Mtenga, legal arguments challenging the Decision. As stated above under principle ( c), the power of review is limited to correction of mistakes, not to substitute a view in law. We find as a result, that ground (1) has been raised as a ground of appeal. It does not therefore qualify as a ground of review. As for the decisions cited by Mr. Materu, we hasten to say that the same are distinguishable as submitted by Ms. Mtenga. In the Muhidin Ally case (supra) for the example, there was an apparent contradiction between the evidence of the victim who said that he did not 13

identify one of charged persons (the 3 rd applicant in that case). The said person was convicted on the evidence of the witness (PW2) who was not at

-----~ - _____ the.sce.ne.of-crl-me-but who-clai·med·tcrnave identffied the 3 rd applicant. The Court found that the conviction of the 3 rd applicant was based on a manifest error on the face of the record resulting in miscarriage of justice. Similarly as to the case of John Martin Marwa (supra), the applicant was charged with the offence of rape without citing, in the charge sheet, specific provisions for the offence. The Court found that the decision was based on an error which was apparent on the face of the record. It did not require a long debate for the same to be disclosed. Actually in that case, the State Attorney who appeared for the respondent readily conceded that the error was manifest on the face of the record and that the same occasioned a miscarriage of justice to the applicant. With regard to the second issue, we need not be detained much in determining it. After the point of law had been raised by the Court, as stated above, counsel for the applicants and the State Attorney were heard and at the end the Court gave the Decision. The fact that the appeal was determined on the basis of the point of law does not amount to depriving the applicants of their right to be heard in the appeal. They could not be 14

• heard on the appeal which was incompetent hence inexistent in law. Their right to be heard as far as the appeal is concerQ_e..9 _ n_ged_ upon _the ___ _ -------------- --------------- ~ determination of the preliminary point of law. In any case, the applicants are still having the opportunity of challenging the decision of the High court as regard the complaint if ultimately, after the trial de nova, the case reaches the Court on appeal. For these reasons, like the 1 st issue, the answer to the second issue is in the negative. As a .result~ on the basis of the foregoing, we do not find merit in the application: The same is -hereby dismissed. C "- . . '· . . --~· ' "· ' .. ... ',... . .. DATED at ARUSHA this 13 th day of December, 2017. S. MJASIRI JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the riginal. A.H. MS MI DEPUTY REGISTRAR COURT OF APPEAL 15