fadhili msemo vs republic 2010 tzca 90 15 march 2010

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA CRIMINAL APPLICATION NO. 9 OF 2009 FADHILI MSEMO....................................................... APPLICANT Versus THE REPUBLIC.................................................... RESPONDENT (Application for extension of time to file review from the Judgment of the Court of Appeal of Tanzania at Tanga) (Makame, J.A., Munuo, J.A., And Kaii, J.A.,1 Dated the 6th day of July, 2006 In Criminal Appeal No. 78 of 2005

RULING 12 & 15 March, 2010 MSOFFE, J.A: By a notice of motion lodged on 2/7/2009 the applicant is moving the Court to grant him an extension of time to file an application for review of the decision of this Court in Criminal Appeal No. 78 of 2005 which was delivered on 6/7/2006. l It is evident from the averment under paragraph 4 of the affidavit in support of the application that the applicant was not satisfied with the aforesaid decision and hence intends to challenge it by way of a review. In other words, if this application is granted, he intends to challenge the merits of the decision. With respect, as my brother Mandia, J.A. pointed out, correctly in my view, in Miraji Seif versus Republic, Criminal Application No. 2 of 2009 (unreported) it is trite law that review is not geared at challenging the merits of a decision of a Court. A review is intended to address irregularities of a decision. I may add two other things. One, a review is not an appeal. In other words, it is not "a second bite", so to speak. Two, with the coming into operation on 1/2/2010 of the Tanzania Court of Appeal Rules, 2009, Rule 66 (1) thereof has now set out clearly the grounds for review. It follows that an intended applicant must bear in mind the above grounds before processing an application for review. An intended applicant should also know that under sub-rule 3 thereof an application for review

must be filed within sixty days from the date of the judgment or the order sought to be reviewed. 2 In the present application tnere is not in tim ation d i i y w u e i e m a t n m e application is granted the applicant intends to raise any of the grounds stipulated under Rule 66 (1). As already observed, the judgment subject of the intended review was given on 6/7/2006 and this application was lodged on 2/7/2009. Under paragraph 4 of the affidavit the applicant is blaming the prison authorities for this delay of almost three years before filing the application. In the absence of an affidavit from the prison authorities to confirm this allegation it follows that the said allegation remains unsubstantiated. The material on record does not show that there is sufficient reason upon which the application for extension of time can be granted. The application is accordingly dismissed. DATED at TANGA this 13thday of March, 2010. J. H. MSOFFE

JUSTICE OF APPEAL x v-»v—i l i i y 1.1 i u v . iw ~ w r J (N. N. CHUSI)

DEPUTY REGISTRAR