Dadu Sumano @ Kilages vs Republic (Criminal Application No. 13 of 2014) [2017] TZCA 1201 (25 August 2017)

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• • -~--' IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LUANDA, J.A. MMILLA, J.A., And MWARIJA, J.A.) · CRIMINAL APPLICATION NO. 13 OF 2014 DADU SUMANO@ KILAGESA .................................................. APPLICANT VERSUS THE REPUBLIC .................................................................... RES PON DENT (An application for review of the decision of the Court of Appeal of Tanzania at Tabora) (Mbarouk, J.A, Massati,J.A. and Mussa, J.A) Dated 20 th day of June, 2014 in Criminal Appeal No. 222 of 2013 RULING OF THE COURT 21 st & 25 th August, 2017 MWARIJA, l.A.: The applicant, Dadu Sumano @ Kilagesa was charged in the District Court of Kasulu with the offence of armed robbery contrary to sections 285 and 286 of the Penal Code [Cap. 16 R.E 2002]. He was found guilty of having stolen, at a gun point, various properties total valued. at shs. 215,000/= from one Stephano s/o Selekwa at Shinguliba village in Kasulu District on 31/3/2007. As a result, he was convicted and sentenced to 30 1

the High Court of Tanzania at Tabora in Criminal Appeal No. 80 of 2011 was dismissed. Aggrieved further, he unsuccessfully appealed to this Court in Criminal Appeal No. 222 of 2013. The applicant has brought this application seeking review of the decision of this Court which dismissed his appeal. In his narrative notice of motion filed on 21/7/2014, he states the following as his grounds for the sought review. We reproduce it verbatim as follows: "(i) As according to Rule 66 (1) of the TCA Rules 2009/ the decision was based on manifest error on the face of the record resulting in the miscarriage of justice as the Hon. Bench of justice of appeal overlooked and the accepted the evidence of PWJ .and P!4l3 Vilho are counted as a single witness. (ii) As per the same Rule sub Rule (1) (b) of the act truly wasn't heard as my defence wasn't recorded and the Bench of justice took as that I didn 1: raise from the trial 2

i court and that I that I didn 1.- L,oss-exan1fne the witnessec;,. which I done from then up to the court of appeal. (iii) Under Rule 66 {l) (e) of the TCA Rules, 2009 thus the Judgment was procured illegaliy or by frond or perjury as - based on the evidence which was not according to law. (iv) As per the same Rule, Sub Rule (1) (c) thus court's decision is nullity. '' From the contents of the notice of motion, the grounds of review raised by the applicant can be rephrased as follows:

1. That the judgment sought to be reviewed was based on a manifest error apparent on the face of the record resulting into injustice on the part of the applicant.
2. That the applicant was denied the right to be heard.
3. That the judgment sought to be reviewed was procured illegally or by fraud or perjury.
4. That the judgment sought to be reviewed is a nullity. 3

unpresented while Mr. Juma Masanja, learned Senior State Attorney appeared for the respondent/Republic. The applicant did not have much to submit in support of his application apart from reiterating the contents of his notice of motion. He however added a ground that he was awarded the sentence which is prescribed for the offence with which he was not charged. He insisted that whereas he was charged with the offence of robbery with violence, the sentence of 30 years passed on him is for the offence of armed robbery which, he said, he was not charged with. Mr. Masanja, opposed the application. In his reply submission, he argued that the applicant has not established existence in the Court's judgment, of any of the alleged irregularities. Elaborating, the learned Senior State Attorney submitted that apart from his contentions in the notice of· motion, the applicant has not shown anywhere in the decision, existence of the alleged errors, illegality or that the judgment was procured by fraud or perjury. Mr. Masanja argued further that the applicant has not been able to show that he was deprived of the night to be heard. According to the iearned Senior State Attorney, the judgment reveals to the contrary, that the applicant was afforded and exercised that night. 4

application; that the sentence passed on him is for the offence with which he was not charged, Mr. Masanja opposed that ground. He argued that ... apart from being misconceived, it is a new ground which was not raised. in the notice of motion. For that reason, the learned Senior State Attorney argued, it cannot be entertained. He cited to that effect, the case of Edward Joseph v. Republic, Criminal Appeal No. 272 of 2009 (unreported) to support his argument. Having considered the submissions made by the applicant and the learned Senior State Attorney, we are of the considered view that the application is devoid of merit. We agree with Mr. Masanja that the applicant has failed to substantiate his contention that the judgment is tainted with the alleged irregularities. It is patently clear from the notice of motion, that although the applicant has alleged existence of the stated irregularities, he embarked on challenging the merits of the decision. He states, for example, that the Court overlooked the evidence of PW1 and PW3 and failed to find that his conviction was founded on the evidence which was not adrnlssible in law. 5

alleged existence of irregularities in the judgment, he wrongly attempted to substantiate them by raising matters which are not within the purview of an application for review .. It has been emphasized many a time by the Court, that the purpose of an application for review is not to challenge the merits of the judgment. It is to correct irregularities which caused injustice to a party. - See for example the case of Charles Barnaba v. Republic, Criminal Application No. 13 of 2009 (unreported). In that case, the Court stated as follows: "Review is not to challenge the merits of the decision. A review is intended to address irregularities of a decision or proceedings · -:f which caused injustice to a party.'' With regard to the ground raised by the applicant at the hearing of the application, we also agree with Mr. Masanja that, since the applicant did not raise it in his notice of motion, the same cannot be entertained. Under Rule 66 (3) of the Rules, the grounds for review of a decision of the Court must be set out in the notice of motion. That provision states as follows: 6

,,...,.., '. . r [. r . I " , r•r I •• I • • • ,J 1 r1e oouce o; iflO 1ori 1ot re1/1ew s Ji!J! L'e 1/1eo 0.1_1lf.1!t1 .5!x[y{k!J!5 -. •. from the date of the Judgment or order sought to be reviewed. It shall .set out clearly the grounds for review'~ [Emphasis added]. Since therefore, the ground concerning sentence was raised by the applicant as a new ground during the hearing of the application, the Court cannot entertain it. Having so found, that ground fails as well. In the event, on the basis the foregoing reasons, the application is dismissed for lack of merit. DATED at TABORA 25 th day of August, 2017. B. M. LUANDA JUSTICE OF APPEAL

• ·B. 'M: K: ·MMILLA. · JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~-- P.W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 7