Hamis Shaban @ Hamis Ustadhi vs Republic (Criminal Application No. 9 of 2014) [2017] TZCA 1211 (2 November 2017)

.. ✓ ,,,.. IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: LUANDA. l.A., MMILLA, l.A., And MKUYE. l.A.) CRIMINAL APPLICATION NO. 9 OF 2014 HAM IS SHABAN @ HAMIS USTADHI. ....•................. ......... .....•........ APPLICANT VERSUS THE REPUBLIC •....•.....•.......•....•....•..•.....•.......••.•.••.............•....... RESPONDENT (Application for review from the Decision of the Court of Appeal of Tanzania at Mwanza) (Mbarouk. Bwana And Massati, lllA) Dated the 14 th day of March, 2013 in Criminal Appeal No. 259 of 2010 .................. RULING OF THE COURT 29 th November, & 5 th December, 2017. MMILLA. J. A.: This is an application for a review lodged by Hamis Shaban@ Hamis Ustadhi (the applicant). It has been brought by way of notice of motion filed on 29.9.2014, and is anchored under Rule 66 (1) (a) and (e) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit affirmed by the applicant, and is seeking the indulgence of the Court to review its judgment in Criminal Appeal No. 259 of 2010 (Hon. f I Mbarouk, Bwana, Massati JJJA) dated of 14.3.2014. 1

The applicant was initially charged with and convicted in the District Court of Mwanza at Mwanza of unnatural offence contrary to section 154 of the Penal Code, Cap. 16 of the Revised Edition, 2002. He was sentenced to thirty (30) years imprisonment and ordered to pay the prosecutrix the sum of T.shs 300,000/= as compensation for the suffering she endured. His first appeal to the High Court of Tanzania at Mwanza was dismissed, so also was his second appeal to the Court. Undeterred, the applicant has preferred the present application. The notice of motion has raised two grounds. The first ground alleges that there is an error apparent on the face of the record in that the courts overlooked and/or did not observe the contradictions and inconsistences which characterized the prosecution evidence. The second ground states that the judgment of the Court was procured illegally because of the I I Court's failure to rule that possibly the disappearance of exhibits P6 and P7 could have been done corruptly with a view of incriminating him with the charged crime. The applicant highlighted several areas which he perceived were pregnant with contradictions and inconsistences. He referred us to the case of Muhidin Ally@ Muddy and 2 Others v. Republic, Criminal Application No. 2 of 2006, CAT (unreported). In that case the Court 2

upheld the contention in an application for review that there were unresolved contradictions in the evidence of the prosecution in respect of the applicant's identification. He also attempted to suggest the reasons why he says the disappearance of the said exhibits was intended to incriminate him. Before us, the applicant appeared in person and fended for himself, whereas the respondent Republic enjoyed the services of Mr. Hemed Hamid Halfani, assisted by Ms Sabina Chogogwe, learned State Attorneys. At the commencement of hearing, the applicant prayed the Court to adopt the grounds he raised in the notice of motion as well as the highlights he made therein. He repeated his complaint that the evidence of the prosecution witnesses was loaded with contradictions and inconsistences which were overlooked by the courts because those aspects were not resolved. He similarly contended that the courts wrongly believed the evidence of the prosecutrix without first having been satisfied that she was a credible witness. He further submitted that the disappearance of the exhibits P6 and P7 was intended to incriminate him. He urged the Court to carefully weigh the grounds he raised and do justice in the case. He requested the Court to grant the application. 3

At the outset, Mr. Halfani submitted that they were opposing the application. He contended that the applicant failed to establish that there is any error apparent on the face of the record in the judgment of the Court being impugned, but that he made attempts to explain the error by way of convincing the Court to re-evaluate the evidence on record. Relying on the case of Mirumbe Elias@ Mwita v. Republic, Criminal Application No. 4 of 2015, CAT (unreported), Mr. Halfani submitted that in terms of Rule 66 (1) (a) of the Rules, for an application to stand the error must be apparent on the face of the record. As regards the second ground, likewise Mr. Halfani submitted that the applicant failed to establish any fraud, and that what he raised in this respect are matters which were raised during the hearing of the appeal I / and were exhaustively discussed by the Court. He added that those are not matters for review, and that in applications such as the present; the Court is not allowed to sit in judgment of its own previous decision. Again, he referred the Court to the case of Mirumbe Elias @ Mwita v. Republic (supra). He pressed the Court to dismiss the application. 4

In a brief rejoinder, the applicant has reiterated his urge for the Court to earnestly weigh the grounds he has advanced in order to reach at a sound decision. He urged the Court to allow his application. We wish to begin by an attempt to explain what review means. Simply put, review means re-examination of a subject or thing. As we stated in the case of Mbijima Mpigaa and Another v. Republic, Civil Application No. 3 of 2011, CAT (unreported), it envisages a situation whereby the court is being asked to re-consider its own decision on allegation that something was not considered which resulted in a miscarriage of justice. We rush to add that that may be done while remaining focused that in a review the Court should not sit on appeal against its own judgment in the same proceedings - See the case of Lakhamshi Brothers Ltd v. Raja Sons, (1966) E.A 313. In terms of Rule 66 (1) of the Rules, a party is required to state any of the grounds indicated under sub-rule (1), paragraphs (a) to (e) of the J J Rule. That Rule states that:- 5

"66 (1) The Cowt 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 a manifest error on the face of the record resulting in miscarriage of justice; or (b) a party was wrongly deprived of an opportunity to be heard; or (c) the Court's decision is a nullity; or ( d) the Court had no jurisdiction to entertain the case; or ( e) the judgment was procured illegally, or by fraud or perjury." In the , present matter, the applicant's first ground has cited paragraphs (a) of sub-rule (1) of Rule 66 of the Rules which refers to a manifest error on the face of the record. In the case of Chandrakant loshubhai Patel v. Republic [2004] T.L.R. 218, the Court explicated the phrase "manifest error" to mean an error apparent on the face of the record, which is obvious and self-evident, and which may result in a miscarriage of justice. The catch words are " ••• an error 6

apparent on the face of the record, which is obvious and self- "d t ,, I ev1 en ... In the present application, the applicant alleges that there is an error apparent on the face of the record in the judgment of the Court because the courts overlooked and/or did not observe the contradictions and inconsistences which characterized the prosecution evidence. According to him, PW1 contradicted herself on the date on which the PF3 was issued to the victim by the p0lice. Whereas she said it was given to the complainant (PW3) on 16.11.2001, the PF3 which was tendered during trial showed that it was issued to the latter on 21.12.2001. He also complained that while PW1 said PW3 was discharged from hospital after 15 days, the proceedings before the High Court showed that she was discharged after 5 days. He further protested that while the proceedings in the preliminary hearing showed that PW3 was medically examined by Dr. Ikoko, PW4 stated in his evidence that she was medically examined by Dr. Rwebangira. In the circumstances, the applicant contends that there was an error on the face of the record necessitating the Court to review its previous decision. We hasten to say that we are not persuaded that this ground qualifies to be an error apparent on the face of the record, and is 7

self-evident. We are saying so because, as submitted by Mr. Halfani, the illustrations given above by the applicant invites the Court to look at the "error" by way of re-evaluate of the evidence on record which means it does not meet the test of being an error apparent on the face of the record. We have carefully read the case of Muhidin Ally @ Muddy and 2 Others v. Republic (supra) he referred to us. As already pointed out, one of the grounds which were raised by the applicants in that case focused on the question of contradictions and inconsistences in the evidence of the prosecution side regarding their identification. After deliberations, the Court upheld that ground. With that in mind, we nevertheless find that the cited case is distinguishable to the present case. Muhidin Ally @ Muddy's case was filed in Court in 2006, the period prior to the enactment of the Tanzania Court of Appeal Rules, 2009 GN No. 36 of 2010. During that time, a party could put forth any of the grounds which were created through case law - See the case of Chandrakant Joshubhai Patel v. Republic (supra). However, things changed after the promulgation of the said Tanzania Court of Appeal Rules, 2009 because under these Rules, Rule 66 (1) thereof 8

regulates the 1 grol'.mds which a party is required to advance in an application for review. See the cases of Rajabu Yusuph v. Republic, Criminal Application No. 3b of 2014, CAT and Ngasa Nhabi v. Republic, Criminal Application No. 2 of 2014, CAT (both unreported). In those cases, the Court emphasized that the application for review is required to rely on any of the grounds set out in Rule 66 (1) of the Rules. Consequently, since the present application was instituted on 29.9.2014, the same is governed I J by the dictates of Rule 66 (1) (a) to (e) of the Rules. Thus, we find that the applicant has failed to defend this ground. Besides, reading the judgment of the Court being impugned, all the complained of aspects were exhaustively discussed and were found to lack merit. Thus, this ground lacks merit, we accordingly dismiss it. The second ground is pivoted on paragraph (e) of sub-rule (1) of J Rule 66 of the Rules. It alleges that the judgment under consideration was procured illegally, or by fraud, or perjury. The applicant illustrated that he had all through desired for the hearing of his appeal to proceed after recovery of exhibits P6 and P7 which had disappeared, until when he was persuaded otherwise. He contended that he was nevertheless disappointed on Court's failure to rule that the disappearance of exhibits P6 9

and P7 could have been possibly done corruptly with a view of incriminating him with the charged crime, which is why, he says, the judgment was procured illegally. We have likewise considered this ground. Once again, we agree with Mr. Halfani that it is equally baseless because the applicant has failed to establish any fraud, and that these matters as well were raised during the hearing of the appeal and were comprehensively discussed. As such, to reconsider them in this application is tantamount to re-hearing the appeal. As already pointed out, that cannot be allowed - See the cases of Lakhamshi Brothers Ltd v. Raja Sons (supra). This ground too is demerit. We desire to emphasize that the Court's review jurisdiction should be exercised rarely and only in deserving cases falling under the conditions stated under Rule 66 (1) of the Rules - See the case of Andrew Ambrose v. The Republic, Criminal Application No. 6 of 2009, CAT (unreported) in which the Court stated that:- ' I "We feel it important to observe that as often stressed by this Court, the review jurisdiction should be exercised in rarest of cases and in 10

--- --- ----. the most deserving ones which meet the specific benchmarks provided under Rule 66 (1) of the Rules - See Shedrack Mkungilwa and another v. Republic, Criminal Application No. 1 of 2012 CAT (unreported). In that case, the Court emphasized that: '.4 review application, therefore should not be lightly entertained when it is obvious that what is being sought therein is a disguised re-hearing of the already determined appeal: This culminates/sums up to saying that in a review the Court should not sit on appeal against its own judgment in the same proceedings. " For reasons we have given, the application lacks merit and is hereby dismissed. DATED at MWANZA this 2 nd day of December, 2017. B. M. LUANDA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the R PPEAL 11