20170524 TZCA Arusha

', IN THE COURT OF APPEAL OF TANZANIA ATARUSHA {CORAM: MJASIRI, J.A., MUGASHA, J.A., And MWANGESI. J.A.) CONSOLIDATED CRIMINAL APPLICATIONS NO. 6,7,8,4 &3 OF 2013 1.ALLY RAJABU 2. ANGAJA KAZENI@ORIA 3. GEOFREY STANLEY@BABUU ................... ~ ....................... APPLICANTS 4. EMANUEL MICHAEL@ATUU 5. JULIUS PETRO VERSUS THE REPUBLIC ....................................................................RESPONDENT {Application for review from the decision of the Court of Appeal of Tanzania at Arusha) {Msoffe, Mjasiri Juma, JJJ.A.) dated the 22th day of March, 2012 in Criminal Appeal No. 43 of 2007 RULING OF THE COURT 24th & 26th May, 2017 MUGASHA, J.A.: This is an application for review of the Judgment of this Court (MSOFFE, MJASIRI, JUMA, and JjJ.A JA) which dismissed the appeal against the decision of the High Court in Criminal Appeal No. 43 of 2012. The facts as can be gleaned from the impugned decision are as follows: the deceased one Jamal Abdalla lived with his family in the same compound in Mruma village. The compound had two houses which were close by. The 1 smaller one was occupied by the deceased's parents and the bigger one by the deceased, his brothers and sisters and his sister in law. On the material date and time, five bandits invaded the deceased's house, forced his front door open using a huge stone commonly known as "Fatuma". In the cause of the raid, gunshots were fired, and the deceased was killed for refusing to hand over money to the bandits. After the shooting, the bandits forced their way into the bedroom of Muhidin Abdallah (PWl) who was the brother of the deceased. At gun point they asked for money and threatened to kill him if he does not surrender the money to them. The 1st, 4th and 5th applicants entered into his room and as the kerosene lamp was on, there was enough light which enabled PWl to identify them. Having asked for money, PWl had to push up the wicker of the lamp to increase the light in order to find the plastic bag which contained Tshs. 1,000,000/= and handed it over the bag to Ally Raja bu (1 st applicant). Emmanuel Michael who carried a gun ordered PWl to open the bag to confirm if there was money. When the deceased's father heard the noise of the breaking of the door and the gunshot, he tried to get out of his house only to find that the door was locked from outside. He went outside through the window carrying 2 a three battery powered flashlight and saw two bandits, Angaja Kazeni and Geofrey Stanley, the 2nd and 3rd applicants. The five applicants were subsequently arrested and arraigned for causing death of the deceased. They denied any involvement in the offence. The trial court concluded that, they were sufficiently identified to have been at the scene of crime at the material time. Following the dis.missal of their appeal by the Court in Criminal Appeal No. 43 of 2012, the applicants are seeking review in the present application brought under Rule 66 (l)(a) of the Court of Appeal Rules, 2009 (the Rules). The application is supported by the affidavits of, ALLY RAJABU, ANGAJA KAZENI, GEOFREY STANLEY@ BABUU, EMMANUEL MICHAEL and JULIUS PETRO; the applicants. In the Notice of Motion, the applicants have raised the following ground for review: 11 { a). That, the honourable Justices of Appeal in their final analysis concerning the entire issue of identification of the appellants was made per incuriam, as such leaving much celebrated authorities of the Court of Appeal of Tanzania Hanging on a thin line. Eg GALA US FAUSTINE VS REPUBLIC (CAT) Criminal Appeal No. 2 of 2009, {Arusha Registry) (unreported) 3 In their respective affidavits, the applicants aver that, they were convicted of the offence of murder in the trial before the High Court on 25 th November, 2011 and appealed to the Court in Criminal Appeal No 43 of 2012 which is the subject of the present application. They also contended that, the issue of their identification at the scene of crime was wrongly determined by the Court and this is what makes them seek this review. The application is opposed by the respondent Republic through the Affidavit in Reply of JANETH SEKULE, learned Senior State Attorney. She is challenging the entire application contending that, there is no manifest error on the face of record of the impugned decision. At the hearing of the application, the applicants were represented by Mr. Emmanuel Kinabo, learned counsel whereas Mr. Samwel Meliara, learned State Attorney, represented the respondent Republic. He initially abandoned the preliminary point of objection earlier on filed and it was marked withdrawn. Mr. Kinabo submitted that, the applicants are seeking the review of the Court's decision in Criminal Appeal No. 43 of 2012. He pointed out that, in the impugned decision the Court's conclusion that, the evidence was watertight and that the applicants were properly identified at the scene of 4 crime, was erroneous. He so submitted arguing that, the Court did not consider the principles on visual identification at the crime scene as laid down in the case of GALAUS FAUSTINE vs REPUBLIC (CAT), Criminal Appeal No. 2 of 2009, (Arusha Registry) (unreported). In this regard, the learned counsel viewed this to constitute a manifest error on the face of record and urged us to review and vary our decision in Criminal Appeal No. 43 of 2012. On the other hand, Mr. Samwel Meliara learned State Attorney submitted that, the application contravenes the very provision under which it is brought that is, rule 66 (1) (a) of the Rules. He pointed out that, it is the applicants' complaint that in the impugned decision the issue of identification was wrongly decided without due regard to the principles of identification stated in the case of GALAUS FAUSTINE vs REPUBLIC (supra). He argued that, the Court is not restricted to rely on solely that case because there are several decisions which have propounded the principles on visual identification including the case of WAZIRI AMANI vs REPUBLIC (1980) T.L.R 2so which was relied upon in both the impugned decision and Galaus's case. He concluded that, since a re- hearing and re-evaluation of the evidence is not a manifest error on the face of record, this application has not met the criteria for invoking the review jurisdiction as stated under Rule 66(1) (a) of 5 the Rules. Besides, the learned counsel submitted that, the complaint on identification was a ground of appeal before the Court and it was dealt with in the impugned decision. As such, he prayed for the dismissal of the application which is unmerited. The grounds upon which a review can be sought are limited to what is spelt out under Rule 66(1) (a) to (e) of Rules which provides: - "The Court may review its judgment or order, but no awlication for review will be entertained except on the following grounds namely that: (a). the decision was based on a manifest error on the face of record resulting in the miscarriage ofjustice; or (b). a party was wrongly deprived of an opportunity to be heard; (c). the court's decision is a nullity; ( d). the court had no jurisdiction to entertain the case. (e). the judgment was procured illegally, or by fraud or perjury." [Emphasis supplied]. According to the Notice of Motion, the present application is predicated upon Rule 66(1) (a), of the Rules which is that, the said judgment be reviewed and set aside on the ground that it is based on a manifest error on 6 the face of the record resulting in the miscarriage of justice. In this regard, the only point for consideration is whether the applicant has satisfied the criteria warranting the review. It is settled law that, the jurisdiction for review is necessary to ensure that a manifest injustice does not go uncorrected. (See CHANDRAKANT JOSHIBHAI PATEL v R {2004) TLR. 218. However, the power for review is limited in scope and is normally used for correction of a mistake but not to substitute a view in law. (See PETER NG'HOMANGO vs. GERSON A.K. MWANGA and ANOTHER, Civil Application No. 33 of 2002 (unreported). This is basically so, because a judgment of the final court is final and review of such judgment is an exception. A mere disagreement with the view of the judgment cannot be the ground for the invoking the review jurisdiction. As long as the point 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 (See BLUE LINE ENTERPRISES LTD. vs. THE EAST AFRICAN DEVELOPMENT BANK, (EADB), Civil Application No. 21 of 2012. Moreover, the review jurisdiction should not be utilized as a backdoor method to unsuccessful litigants to re-argue their case and it would be intolerable and most prejudicial to the public interest if cases once 7 decided by the Court could be re-opened and re-heard. (See BLUE LINE ENTERPRISES LTD. vs. EADB (supra) and AUTODESK INC. v. DYASON (No. 2) (1993) HCA 6 (Australia). Having carefully considered the submission of counsel and the ground upon which the review is sought we shall be guided by the stated principles for review, to determine if the applicants' complaint constitutes an error apparent on the face of record of the impugned decision. As correctly submitted by the learned State Attorney, the evidence on identification of the applicants at the scene of crime raised in this application was considered at length by the Court from page 9 to 15 of the impugned decision. At page 15 the Court concluded as follows: " In this case the conditions of identification were favourable. Both PWl and PW2 knew the appellants well,· they lived in the same village. Though the incident happened at night. There was light from kerosene lamp and torch, and PWl and the first and fourth and fifth appellants spent some time in PWl s bedroom and were at close range. PW2 was also outside his childrens house, and was not far from where the second and third appellants were. Therefore in the circumstances of this case we have come to the conclusion that we cannot fault the trial judge in her finding. We are satisfied that the prosecution established to the standards required under the law that it was the appellants who killed the deceased ...... " 8 ... We wish to point out that, utilizing a review for disagreement with the view of the judgment is not acceptable on account that the point is already dealt with and answered. Moreover, to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction is not acceptable as that would be tantamount to utilizing a review as a backdoor or another round of rehearing and re-evaluation of the evidence which is not the domain of this Court. In this application, apart from the applicants raising complaint on disagreement with the impugned decision, their complaint was well attended and answered by the Court in the impugned judgment. And, apart from the disagreement with the impugned decision, the applicants have failed to show as to how the Court's determination on the alleged complaint constitutes an error manifest on the face of record. Since the complaint raised in the motion and at the hearing was dealt with and answered in the impugned decision, in our considered view, in the present application, the applicants were all out to re-open the re-hearing and re-arguing what has already been determined in the impugned decision. This falls short of constituting a ground for reviewing the impugned decision. In this regard, we entirely agree with the learned State Attorney that, the 9 application does not meet the required criteria warranting the review, as the applicants have not made out a case warranting the Court to review the impugned Judgment. In view of the aforesaid, the application is without merit and we accordingly, dismiss it. DATED at ARUSHA this 24th day of May, 2017. S. MJASIRI JUSTICE OF APPEAL S. E. MUGASHA JUSTICE OF APPEAL S. MWANGESI JUSTICE OF APPEAL 10