Martine Lihepa vs Republic (Criminal Application No. 6 of 2013) [2017] TZCA 1104 (18 October 2017)

"I_ 1 IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: bUANDA, J.A., MWARIJA, J.A. And MKUY:E, J.A.) CRIMINAL APPLICATION NO. 6 OF 2013 MARTINE LIH EPA. 11 ••• I ••••••• I I I I •••••• ~ ••••••••••• I ••••••••••••••••• I I I II I ill ••••••••••• • APPLICANT VERSUS THE REPUBLIC ......•....................................................•...• , .•....... RES PON DENT (Application for review from a decision of the High Court of Tanzania at Dar es Salaam (Munuo, Nsekela, Luanda, JJJ.A.) dated the 28 th day of August, 2009 in Criminal Appeal No. 273 of 2005 RULING OF THE COURT 4 th & 20 th October, 2017 MKUYE, J.A.: The applicant, Martine Lihepa was charged in the High Court of Tanzania at Morogoro (Criminal Sessions Case No. 20 of 2007) with murder ' . contrary to section 196 of the PenI CQQ,(:gp_J6, RE 2002. He .. was_alleged ,: ------------·-----·---·--•·---------- - ------ - to have on 9 th day of February, 2001, murdered one Sister Lihepa at Vigoi Juu area within Ulanga District, Morogoro Region. Upon full trial, the applicant was convicted and sentenced to suffer death by hanging. Being dissatisfied by the High Court's decision, he appealed to this Court (Criminal 1

Appeal No. 273 of 2005) (Munuo, Nsekela and Luanda, JJJ.A.) but his appeal was unsuccessful. Subsequently 1 the applicant earlier on filed to this Court an application fdr review of the decision dated 28/8/2009 in which he raised two grounds of review. Later, on 19/9/2017 the applicant through Criminal Application No. 9/01/2017 made a prayer to the Court to amend the notice of motion in Criminal Application No 6 of 2013 and the same was granted for which the applicant was to file the amended notice of motion within four weeks from the date of the Order. Hence, on 3/10/2017 he filed an amended notice of motio11 which is made under Rules 48(1) and 66(1) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and it is supported by the affidavit sworn by the applicant himself on 29/9/2017. The applicant has fronted five grounds of review which can conveniently be extracted as follows:-

1. The decision of the Court was based on the apparent error on the face of the record resulting ·------- . -·- ------- --- -· - ---- -------·- ·-·-1 . -·-- - - ----~~---- - . to miscarriage of Justice by upholding the applicant's conviction and sentence on the basis of the postmortem examination report admitted without requiring the doctor who authored it to prove it in Court. 2

2. Upholding the decision on the basis of unobjected exhibits tendered during preliminary hearing without allowing the applicant to comment on them during trial.

3. Upholding conviction and sentence basing on opinion of assessors whom the applicant was not asked if he agreed them to hear his case.

4. The decision of the Court of Appeal has some errors and misdirection on points of law and fact in relying in the caution statement allegedly obtained voluntarily which was not proved.

5. The Justices of appeal failed to note that the date of deceased's death indicated in the charge sheet differed from the one indicated in the post- mortem report. When the application was called on for hearing, the applicant appeared in person, unrepresented. On its part, the respondent Republic was represented by Mr. Nassoro Katuga and Ms. Agata Lumato, the learned _Se □ ior_State-Attoi:ney.anci-£tate-Att0rney-r-espeet-ively;· In his brief submission the applicant informed the Court about his application which was filed previously and the one which was filed later following this Courts' order dated 19/9/2017 of which he prayed to adopt. __ ___,H~e,__tber_eafter,JeftjtJ:o-tl:le-Coult-tG-deEi€flt:L-, -------------- 3

In response, Mr. Katuga opposed the application. He submitted that though the applicant premised his application under Rule 66(1) (a) and (b) of the Rules relating to manifest error on the face of the record; and denial of the opportunity to be heard, the applicant is seeking the Court to re-assess the evidence in Criminal Appeal No. 273 of 2005. He contended further that public policy demands that litigations must came to an end. He cited the I case of Mbijima Mpiga & Another Vs Republic Criminal Appeal No. 3 of 2011 {CAT) Dodoma page 6 in support. Mr. Katuga concluded that as the applicant has failed to show the manifest error on the face of the record; or that he was denied the opportunity to be heard, the application should be dismissed. Having examined the notice of motion and the affidavit in its support I which were filed on 3 rd October, 2017, we entirely agree with the learned Senior State Attorney that the grounds of review raised by the applicant are mostly requiring us to re-assess the evidence. ·----- -~~ ---------- - - -----·--·--·-·--·----· .. - --• -----------------·-· - ·- Rule 66 (1) of the Rules which governs review to this Court prohibits review except on grounds provided for under paragraph (a) to (e) of that sub rule. The grounds under which review can be brought are as follows:- 4

" ... (a) that decision was based on a manifest error in the face of the record resulting in the miscarriage of Justice; or (b) a party was wrongly deprived of an opportunity to be heard; (c) the Courts decision is a nullity; (d) the Court had no Jurisdiction to entertain the case; or ( d) the Judgment was procured illegally, or by fraud or perjury. '' Looking at the grounds raised by the applicant in the notice of motion though he has cited paragraph (a) and (b) of Rule 66(1), we have failed to glean any ground which falls within the ambit of that Rule. In our view what the applicant has tried to do is to ask us to re-evaluate or re-assess the evidence relating to the postmortem report admitted without summoning the doctor who authored to prove it; admission of cautioned statement tendered -~·· ··-··· ·-·-··-·· - ······ in ··coo ft;. tffe--triaf"Courts reliance on the opinions of assessors whom the applicant was not asked if he object them; and the difference of dates when the deceased met his death which is not allowed as was correctly argued by Mr. Katuga. In the case of Ismail Mnyawami Vs Republic Criminal 5

• f\ Application No. 5 of 2011 when the Court was faced with similar situation had this to say: " Rule 66(1) of the Court Rules 2009 (the Rules) enumerates grounds upon which review may be entertained. Re-assessment of evidence is not one of the grounds enumerated therein. We wish to point out that not each and every ground qualifies to be a ground of review. lndee~ if each and every ground qualifies to be a ground of review then no litigation will come to an end. This goes contrary to the public policy which demands that litigation must came to an I end (see Samson Matiga V R Criminal Application No. 6 of 2011 {unreported}." The same spirit was echoed in the case of Mbijima Mpiga (supra) while quoting with approval the case of Karim Kiara Vs Republic Criminal Application No. 4 of 2007 {CAT) (Dodoma) (Unreported) that: I must have finali[½ thus the Latin Maxim of "bebet esse finis litium." This is a matter of public policy. It is not insignificant to point out here that if this were not so/ then as was stated by this Court in Marcky Mhango and 684 Others Vs Tanzania Shoes 6

Company Ltd and Another, Civil Application No. 90 of J.999 {Unrepo,ted), the Court's order· would have effect which - " is to reopen the matter otherwise lawfully determined. There should be certainty of , Judgments .. . system of law which cannot guarantee the certainty of its Judgment and their enforceability is a system fundamentally flawed There can be no certainty where decisions can be varied at any time at the pressure of the losing party and the machinery of Justice as an institution would be brought into question ... " It should ,also be noted that strictly speaking the Courts power of review is to be exercised rarely or sparingly. This was articulated in the case of Tanzania Transcontinental Co. Ltd Vs. Design Partnership Ltd Civil Application No. 62 of 1996 (Unreported) thus: ·· -- - -~ --··- · -~':- .. -The-€eurt:s-power-of-review-oughtto beexercised- sparingly and only in the most deserving cases/ bearing in mind the demand of public policy for finality of litigation and for certainty of the law as declared by the highest Court of the land. " 7

As alluded earlier on, we are settled in our mind that the applicant has . failed to comply with the requirements set out under Rule 66(1) of the Rules • . We are of the view that the applicant is in fact seeking the Court to re-assess the evidence in another appeal in disguise. · This is not allowed. For the aforegoing we agree with Mr. Katuga that the application is devoid of merit and we accordingly dismiss it. DATED at DAR ES SALAAM this 18 th day of October, 2017. B.M. LUANDA JUSTICE OF APPEAL A.G. MWARIJA JUSTICE OF APPEAL R.K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. ~~ A.H. MSUMI DEPUTY REGISTRAR COURT OF APPEAL 8