masudi said selemani vs republic 2020 tzca 18 25 february 2020

IN THE COURT OF APPEAL OF TANZANIA AT MTWARA ( CORAM: MWARIJA. J.A.. KWARIKO. J.A. And MWANPAMBO. J.A.^ CRIMINAL APPLICATION NO. 92/07 OF 2019 MASUDI SAID SELEMANI....................................................... -.... APPLICANT VERSUS THE REPUBLIC............ ............................................................RESPONDENT (Application for Review of the Decision of the Court of Appeal of Tanzania at Mtwara) fMsoffe, Orivo and Kaiiaae, JJA.1 dated the 22ndday of November, 2014 in Criminal Appeal No. 162 of 2013 RULING OF THE COURT 19th & 25th February, 2020 KWARIKO, J.A.: Initially, the applicant was arraigned in the High Court of Tanzania at Mtwara with the offence of murder of his close relative one Siajabu Pius contrary to section 196 of the Penal Code [CAP 16 R.E. 2002]. At the end of the trial, he was convicted and sentenced to a mandatory punishment of death by hanging. His appeal before this Court was dismissed on 22/11/2014 for lack of merit. i Still aggrieved, the applicant has knocked the Court's doors applying for review of the said decision. The application has been filed by way of a notice of motion made under section 4(4) of the Appellate Jurisdiction Act [CAP 141 R.E. 2002] as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016 and Rules 48(1) and 66(l)(a)(b)(c) of the Tanzania Court of Appeal Rules, 2009 (the Rules) on the grounds that: - a) The decision was based on m anifest error on the face o f record which resulted in the m iscarriage o f justice. b) He was wrongly deprived o f an opportunity to be heard. c) The Court's decision was a nullity. The notice of motion is supported by the affidavit of the applicant where he essentially complains that the Court's decision failed to notice that the High Court Judge omitted to properly direct the assessors on the meaning of malice aforethought before getting their opinions. On the other hand, the respondent Republic filed an affidavit in reply sworn by Mr. Kauli George Makasi, learned Senior State Attorney wherein he opposed the application on the ground that neither is there 2 any manifest error on the face of the record nor is there any ground upon which this Court can rely to grant this application. At the hearing of the application, the applicant appeared in person unrepresented, while the respondent Republic was represented by Mr. Makasi. The applicant sought leave of the Court to let the State Attorney to respond first to the grounds of the review reserving his right to respond later, if need be. On his part, Mr. Makasi prefaced his submission by opposing the application. Submitting in relation to the first ground, the learned counsel argued that there is no any manifest error on the face of the record in the impugned decision. To lend credence to his position, he referred us to the Court's decision in the case of Justus Tihairwa v. Chief Executive Officer, TTCL, Civil Application No. 131/01 of 2019 which referred the case of Chandrakant Joshubhai Patel v. R [2004] T.L.R 218. In those cases, it was held that the alleged manifest error should be apparent on the face of the record not requiring long-drawn process of reasoning. Mr. Makasi went on to argue that the applicant explained in his affidavit that the error complained of relates to the omission by the trial Court's failure to address the assessors on the meaning of malice aforethought. According to him, this is not an error apparent on the face of the record but it fits to be a ground of appeal. He thus submitted that the applicant ought to have raised that issue as one of the grounds in his appeal before the Court. He argued that the Court cannot sit as an appellate court on its own decision. On whether the applicant was denied an opportunity to be heard which forms the second ground for review, Mr. Makasi argued that the applicant was accorded opportunity to be heard through his advocate, Mr. Hussein Mtembwa as shown from page 4 of the impugned decision. In the third ground, the learned Senior State Attorney argued that the applicant has not shown how the impugned decision is a nullity. He added however that, he has not found anything wrong in that decision to support this complaint. Mr. Makasi finally submitted that the applicant has failed to establish existence of any of the grounds for review and prayed for the dismissal of the application for lack of merit. In his rejoinder, the applicant first complained that the Court's decision favoured the trial Judge as well as the deceased. According to the applicant, this is so because while he had quarreled with Lameck Pius, he was instead implicated with the death of the deceased. As regards the denial of the opportunity to be heard, the applicant argued that he did not discuss his case with his advocate who represented him before the hearing as they only met in Court. We have considered the parties opposing submissions and the issue that calls for determination is whether this application has merit. The Court has powers to review its own decisions. Rule 66 (1) of the Rules provides thus: - The Court m ay review its judgm ent or order, but no application fo r review sh all be entertained except on the follow ing grounds: - (a) the decision was based on a m anifest error on the face o f the record resulting in the m iscarriage o f justice; or (b) a party was wrongly deprived o f an opportunity to be heard; (c) the court's decision is a nullity; or (d) the court had no jurisdiction to entertain the case; or (e) the judgm ent was procured illegally, or by fraud or perjury. This Rule is more or less similar to what was held by the Court in Chandrakant Joshubhai Patel (supra) where it was stated among other things that: - "The Court o f Appeal has inherent jurisdiction to review its decisions and it w ill do so in any o f the follow ing circum stances (which are not necessarily exhaustive): (a) where the decision was obtained by fraud; (b) where a party was wrongly deprived o f the opportunity to be heard; and (c) where there is a m anifest error on the record, which m ust be obvious and self- evident, and which resulted in a m iscarriage o f ju stice ." In the present application, the applicant has invoked sub-rule 1 (a) (b) and (c) of Rule 66 of the Rules, that is, the impugned decision was based on a manifest error on the face of the record which occasioned injustice to him, he was denied opportunity of being heard and that the decision was a nullity. 6 To start with the first ground, the law says that for a decision to be based on manifest error apparent on the face of the record, the error must be clear to the reader not requiring long- drawn arguments or reasoning. There are various decisions of the Court to that effect including Chandrakant Joshubhai Patel (supra), which was followed in the case of Justus Tihairwa (supra) relied upon by Mr. Makasi. Others are: African Marble Company Ltd v. Saruji Corporation Limited, Civil Application No. 132 of 2005 and Said Shabani v. R, Criminal Appeal No. 7 of 2011 (both unreported), to mention but a few. To underscore this point, the Court in Chandrakant cited with approval Mulla, Indian C ivil Procedure Code, 14th Edition at pages 2335-36 and stated that: - "An error apparent on the face o f the record m ust be such as can be seen by one who runs and reads, that is, an obvious and patent m istake and not som ething which can be established by a long-drawn process o f reasoning on points on which there m ay conceivably be two opinions..." Applying the above holding in the present application, it is clear that what the applicant has termed as a manifest error apparent on the face of the record cannot be established without long arguments from the opposing parties which will probably lead to two opposing opinions. The alleged error is, therefore, not apparent on the face of the record. As rightly argued by Mr. Makasi, this complaint fits to be a ground of appeal. The applicant was at liberty if he deemed so to raise it when he presented his appeal before the Court. To raise it now is tantamount to moving the Court to sit as an appellate court on its own decision which is contrary to the law. Apparently, a similar issue arose in Karim Kiara v. R, Criminal Application No. 4 of 2007 (unreported) where the Court referred to the case of Lakhamshi Brothers Ltd v. R. Raja and Sons [1966] 1 EA 313 in which it was held that: - "In a review the court should not s it on appeal against its own judgm ent in the same proceedings. In a review, the court has inherent jurisdiction to recall its judgm ent in order to give effect to its m anifest intention on to what clearly would have been the intention o f the court had some m atter not been inadvertently om itted." The first ground thus fails. The second ground is that the applicant was denied opportunity to be heard. He explained in this respect that he did not discuss his case with his advocate before the hearing date. On our part, we agree with Mr. Makasi that the applicant was heard through his advocate, Mr. Mtembwa who was assigned to represent him in terms of Rule 31 (1) of the Rules as evidenced from page 4 of the impugned decision. We are further of the considered opinion that, had the applicant found that the advocate's submissions were short of his grounds of appeal, he ought to have consulted him at that moment or otherwise raised it before the Court. This is the position we took in the recent decision in the case of Godfrey Gabinus @ Ndimba and Two Others v. R, Criminal Application No. 91/07 of 2019 where we said thus; "... Had they have any m isgivings with the assigned advocate, there is no reason why they failed to bring it to the Court's attention in the course o f hearing." This ground too fails. The applicant complains in the third ground that the impugned decision was a nullity. He argued that the decision favoured the trial Judge and the deceased because, while he had quarreled with Lameck Pius, he was instead convicted in relation to the death of the deceased. Essentially, this complaint attacks the findings of the Court on the facts of the case presented before it in that the decision was erroneous. However, it is settled law that a mere error of law is not a ground for review consistent with the holding in Chandrakant's case. As we have 9 already said when discussing the first ground, an erroneous decision is open to an appeal and not subject to review. The third ground thus fails. Consequently, we are settled in our mind that the applicant has failed to prove his grounds for review rendering the application non- meritorious and we hereby dismiss it. DATED at MTWARA this 22nd day of February, 2020. A. G. MWARIJA JUSTICE OF APPEAL M. A. KWARIKO JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL The Ruling delivered this 25th day of February, 2020 in the presence of the applicant in person and Mr. Kauli George Makasi, learned Senior-State Attorney for the respondent / Republic, is hereby ... VV certified as a true c C ^ o f the original. G. H. HERBERT DEPUTY REGISTRAR COURT OF APPEAL 10