CRIMINAL APPLICATION NO 41 01 OF 2021 DANIEL KIVATI MONYALU VS FTHE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM ( CORAM: LILA. J.A.. MWANPAMBO. 3.A. AND KAIRO. J.A.1) CRIMINAL APPLICATION NO. 41/01 OF 2021 PANIEL KIVATI MONYALU..................................... ............................. APPLICANT

VERSUS THE REPUBLIC.................................... ......................... ................... RESPONDENT (Application for Review from the Judgment of the Court of Appeal of Tanzania at Par es Salaam) (Lila, Korosso And Kente. JJA.) dated the 7th day of September, 2021 in Criminal Appeal No. 224 of 2019

RULING OF THE COURT 22nd April & 16th May, 2024 LILA. JA: This is the second time Daniel Kivati Monyalu, the applicant, has appeared before this Court. He first appeared to prosecute his appeal in Criminal Appeal No. 224 of 2019 in which he was challenging the decision of the High Court in Criminal Appeal No. 337 of 2018. The Court dismissed the appeal. He has now preferred this application seeking for review of the Court's decision. The application is made by way of a notice of motion taken under rule 66(1) (a) of the Tanzania Court of Appeal Rules, 2019, (the Rules) and is supported by an affidavit sworn by himself and is premised on a sole ground running thus: - "That the decision was based on the m anifest o f error on the face o f the record resulting in the m iscarriage o f Justice: - (1) That, the Hon. Court m isdirected its e lf in believing PW4 to be credible and reliable and relied on his evidence solely when PW 4's evidence was in m aterial contradiction and wide discrepancies with that of PW5 (the victim ) as their testim onies were borne from the elem ents and facts o f the same incident and circum stances. " The respondent Republic did not find merit in the application and resisted it through an affidavit in reply and sought it to be dismissed for failure to state the alleged error on the face of the record which resulted in the miscarriage of justice. This brief

background suffices to tell the essence of this application. The applicant was charged before the District Court of Kigamboni and was convicted of two counts of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code. He was accused of carnally knowing two 2 boys against the order of nature. The boys whose names were disguised, were each aged seven (7) years, the first testified as PW5 and the second one testified as PW4. Upon conviction, the appellant was sentenced to life imprisonment. His first appeal to the High Court failed in its entirety. His second appeal to this Court was partly successful as the Court allowed his appeal in respect of the first count resulting in being set free in that count. The conviction and sentence in respect of the second count were sustained. He now seeks indulgence of the Court to find that the Court's decision was tainted with manifest error needing to be corrected with the result that he be found innocent on the second count and be set free. In prosecuting the application before us, the applicant appeared in person without legal assistance as he did before the High Court and before the Court on appeal, whereas Ms. Regina Kayuni, learned State Attorney, appeared representing the respondent Republic and she heartily resisted the application. Basically, the applicant's main arguments in expounding his ground of review may be

categorized into four groups. One, the court's findings relied on the testimonies of PW4 and PW5 who contradicted each other hence untruthful. While making reference to pages 19 and 20 of the Court's judgment, his main argument here was that, since the two witnesses said they were together and since the testimony by PW4 was found problematic leading to his being acquitted of the first count, it was wrong for the Court to believe the testimony of PW5 and sustain his conviction. Two; he was puzzled how could he, alone possessing one penis, commit the offence to many children at the same time as PW4's evidence showed that they were more than one in the tuition class. Three; the Court wrongly relied on the testimony by PW4 to arrive at a finding that there was no mistaken identity of the appellant. Four; that he was not served with the complainant's statement at the police station before the trial which was a mandatory requirement. He maintained that, it being mandatory, the omission was a serious error as he was denied the right to know the gist of the complainant's complaint lodged at the police station hence not curable under section 388 of the Criminal Procedure Act. It was his firm view that fairness to both parties, dictated the Court to order a trial de novo. Ms. Kayuni's response was quite brief and focused. In respect of the alleged contradictory evidence between PW4 and

PW5 and reliance on PW5 to sustain his conviction, she argued that the alleged contradiction was raised by the appellant before the Court on appeal as revealed at page 4 of the judgment and deliberated by the Court at pages 17 to 20 of the judgment holding it to be minor. To raise it again before this Court, she submitted, is tantamount to asking the Court to sit on appeal against its own decision which is not within the ambit of review bolstering her assertion with the Court's decision in Maulid Juma Bakari @ Da mu Mbaya vs Republic, Criminal Appeal No. 63/01 of 2020 (unreported). For the remaining complaints, Ms. Kayuni argued that the applicant was inviting the Court to re-evaluate the evidence of the trial court and come up with different findings which is not within the purview of review powers of the Court citing the case of Mirumbe Elias @ Mwita vs Republic, Criminal Appeal No. 4 of 2015 (unreported) which was cited in the case of Maulid Juma Bakari @ Damu Mbaya vs Republic (supra) as a back up to her assertion. She finally urged the Court to dismiss the application. At the very outset we wish to acknowledge that the cases cited by the learned State Attorney expound the proper exposition of the law on review before this Court. And, before we delve into deliberating this application, we wish to remind the parties that, a review by the Court is an exception to the general

rule that the Court's decision, being a decision of an apex court of the land, is final. It is a matter of public policy that litigation must come to an end. In upholding that, the Court pronounced itself in Ezekiel Kapugi vs Abdallah Mambosasa, Civil Application No. 135 of 2016 5 quoting with approval an excerpt from a persuasive case of Raja Prithwi Chand Lall Chaudhary vs Sukhraj Rai (AIR 1941 SCI) that: - "There is a salutary maxim which ought to be observed by a ll courts o f la st resort: In te re s te i re p u b lica e u t s it fin is iitiu m . It concerns the State, that there be an end o f law suits..." [See also Yazidi Kassim t/a Yazidi AutoElectric Repairs vs The Hon. Attorney General, Civil Application No. 354/04 of 2019 (unreported)]. The Court's power to review its own decision is limited in scope as provided under rule 66(1) of the Rules which stipulates five grounds upon which an application for a review may be entertained by the Court. But of interest here is rule 66(1 )(a) of the Rules which provides as follows: - " 66-0) The Court may review its judgm ent or order, but no application for review shall 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 fjustice; or Obvious from the above is the fact that the Court's power in review are confined to its own

decision only and this explains why a record of 6 review constitutes only of the notice of motion supported by an affidavit and the decision sought to be reviewed. To cement that position, in the case of The Hon. Attorney General vs Mwahezi Mohamed (as an administrator of the Estate of the late Dolly Maria Eustace) and Three Others, Civil Application No. 314/12 of 2020 (unreported), the Court observed thus; "Rule 66(1) o f the Rules is very dear that the Court may review its "judgment" or "order", which means, for the Court to determine an application fo r review a ll it needs to have before it is the im pugned decision and not the evidence adduced during tria l or decisions o f subordinate court(s) as subm itted by Mr. Malata. We need to emphasize here that, the record referred to in review is either the "judgment "o r "order" subject o f review". As opposed to powers of review provided under Order XLII of the Civil Procedure Code (the CPC), the exercise of such powers by the Court is governed by section 4(4) of the appellate Jurisdiction Act (the AJA) and it is strictly limited to grounds which are within the confines of the conditions outlined under rule 66(1) of the Rules. It is only within the scope of such rule that the applicant can seek the judgment of this Court to be reviewed, (see Twaha Michael Gujwile vs Kagera Farmers Cooperative Bank Ltd, Civil Application No.

156/04 of 2020, Blue Line Enterprises Limited vs East African Development Bank, Civil Application No. 21 of 2012 and Jayantkumar Chandubhai Patel @ Jeetu Patel and Two Others vs The attorney General and Two Others, Civil Application No. 160 of 2016 (All unreported). As stated above, the present application is grounded on rule 66(l)(a) of the Rules. The issue for our determination is therefore whether the ground raised by the applicant on the notice of motion and as amplified in the supporting affidavit and his arguments before us, justifies review of the Court's decision. The catch words in the rule are " m anifest error on the face o f the record resulting in the m iscarriage o fju stice " which phrase was lucidly expounded by the Court in the case of Chandrakant Joshubhai Patel vs Republic [2004] T.L.R. 218, to mean 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 fong drawn process o f reasoning on points on which there m ay conceivably be two opinions... A mere error o f law is not a ground for review under this rule . That a decision is erroneous in law is no grounds fo r ordering review... It can be said o f an 8 error that it is apparent on the face o f the record when it is self-evident and does not require an elaborate

argum ent to be established...." In view of the above stance of the law, review is meant to afford an opportunity to the Court to re-examine its own judgment or order and, if some errors which occasioned an injustice are easily noted, to amend or correct them. (See Rizali Rahabu vs Republic, Criminal Appeal No. 4 of 2011 (unreported). Having laid the above foundation, we now proceed to deliberate on the ground of review as raised by the applicant guided by the above expositions of the law. The applicant's first complaint is that the Court misdirected itself in believing PW4 (the first victim) to be credible and reliable and relied on his evidence solely to convict him which evidence materially contradicted that of PW5 (the 2nd victim) on the same incident and circumstances. Our read- through of the Court's decision has revealed that it dealt with the complaint on the reliability and credibility of PW4. On this ground, the applicant had complained that the High Court erred in law and fact for not allowing the appeal taking into account the material contradiction in the evidence of PW4 and PW5. The complaint was well considered by the Court on appeal at pages 17 to 25 of the printed judgment before upholding the concurrent findings of both courts below as was rightly submitted by the learned State Attorney. Raising it again here amounts to challenging the Court's decision in the

manner the applicant has done is to invite the Court to re-evaluate the evidence. This cannot be done by way of review. The ground is, by any standard, a ground of appeal. In the case of Karim Ramadhani vs The Republic, Criminal Application No. 25 OF 2012 (unreported), the Court reiterated its position that it cannot sit on appeal against its own decision. In that case this Court categorically stated: "Our decision in M b ijim a M pigaa a n d A n o th e r vs The R e p u b lic (supra) which Ms. Hauie referred to us has articulated the settled position o f the law that in a review, the Court does not s it to re­ evaluate the evidence a ll over again. Instead, the review Court is restricted to determine if there are errors or otherwise apparent on the face o f the decision subject o f an application for review . " [See also Abel Mwamwezi vs The Republic, Criminal Application No. 1 of 2013 (unreported) and Mirumbe Elias @ Mwita vs Republic (supra)] In his further argument, the applicant also argued that the Court, on appeal, wrongly relied on the testimony by P4 to arrive at a finding that there was no mistaken identity of the appellant. He, likewise, faulted the Court for arriving at a finding that he abused the victim whose testimony suggested that they were more than one while he (appellant) was alone and with one penis against the children who were many in the tuition

class. These arguments, no doubt, challenge the Court's findings or view as being erroneous. They therefore qualify to be grounds of appeal not grounds of review. We find support in the case of Angella Amudo and The Secretary General of the East African Community (supra) that: - "an error on the face o f the record ju stifie s a review whiie an erroneous view ju stifies an appeal. Therefore, the power o f review may not be exercised on the ground that the decision was erroneous on m e rit" Lastly, the applicant submitted that he was not served with the complainant's statement at the police station before trial which was a mandatory requirement. This complaint invites the Court to engage itself in perusing the record of proceedings of the trial court. To discover the infraction, the Court has not only to indulge itself in a long process, but also travel outside the record and consider other documents beyond the decision. That cannot be done in review as such proceedings do not form part of the record of review. The complaint, therefore, misses the elements 11 of being a ground of review [see Chandrakant Joshubhai Patel vs Republic and Rizali Rahabu vs Republic (Both supra)]. We are, ultimately, of the decided view that the applicant has not successfully cited any error on the face of the record resulting in miscarriage of justice which would justify the Court to revise its own decision. The application is destitute of merit and is hereby dismissed. DATED at DAR ES SALAAM this 15th day of May, 2024. S. A. LILA

JUSTICE OF APPEAL L. J. S. MWANDAMBO

JUSTICE OF APPEAL L. G. KAIRO

JUSTICE OF APPEAL The Judgment is delivered this 16th day of May, 2024 in the presence of the Appellant via video link and Mr. Cathbeth Mbilingi and John Edger both Principal State Attorney for the respondent is hereby certified as a true copy of the original.