20150319 TZCA Mwanza

,·. ~>~ -.. ',, .. , 2:-~'.:::~·-·: lV IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MBAROUK, J. A., MASSATI. J. A., And MMILLA, J. A.) CRIMINAL APPLICATION NO. 3 OF 2013 G HATI MWITA ..•......•....•..••.......•..........•.........•......•. 9 •••••••••••••••••••••••••• APPLICANT VERSUS THE REPUBLIC •••••••••••••••••••••.••••••••••••••••••••.•••••••••••••••••••••••••••••••• RESPONDENT (Application for review from the Decision of the High Court of Tanzania, · at Mwanza.) I (Mbarouk, Massati, Mussa, JJJ.A.) Dated the 12th day of March, 2013 in Criminal Appeal No. 240 of 2011 ■ 11 ■••············ RULING OF THE COU8T MMILLA, J.A.: The applicant, Ghati Mwita filed this application under Rule 66 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) in which she is inviting the Court to review its own decision in Criminal Appeal No. 240 of 2011 vide _which her appeal against the decision of the High Court at Mwanza in Criminal Sessions Case No. 94 of 2009 was dismissed. The notice of motion has raised two grounds as follows:- 1 .,,. (1) That the decision was based on a manifest error on the face of the record resulting in the miscarriage of justice. . (2) That the applicant was wrongly deprived of an opportunity to be heard. At the hearing of the application the applicant was represented by Mr. Anthony Karaba Nasimire, learned advocate. He dropped ground No. 2 and argued ground No. ·1 which he divided into two limbs. The first· limb is anchored on section 203 (a) of the Penal Code Cap. 16 I ofthe Revised Edition, 2002 (th~ PenaLC:ode) whic_h. he said was not properly interpreted. This is because, he said, according to PWl Hussein Said, the deceased received blood transfusion several times before the burning incident, as well as the evidence of PW2 Posian. Kihanga who testified that the deceased was sick. Mr. Nasimire submitted further that following the Court's move to expunge the autopsy report, and in the absence of medical or surgical evidence as to the actual cause of deceased's death, proper • interpretation of section 203 (a) of the Penal Code could have destined the Cou(1: to the conclusion that death could have occurred of any other factor other than the alleged burns the deceased had sustained. At most, he said, the applicant ought to have been convicted of unlawful wounding contrary to 2 section 222 of the Penal Code if PWl's credibility remained unshaken. He . submitted that in his view, misinterpretation of section 203 (a) of the said Act . was a manifest error on the face of the record resulting in the- miscarriage of justice. When probed by the Court on whether the alleged "error" could be detected without resorting to evidence, Mr. Nasimire conceded that it was not possible, but that even if he was to abandon reference to the evidence of PWl and PW2, still he believes that misinterpretation of section 203 (a) of the Penal Code was an error apparent on the face of the record. _ The second limb is that the tri~l_ judge wrongly allowed himself and the assessors to cross examine the witnesses which Ile said, was an irregularity in terms of section 73 of the Evidence Act, Cap. 6 of the. Revised Edition, 2002. He contended that it was a non direction and constituted an error apparent on the face of the record which resulted into miscarriage of justice. Once again, on being probed by the Court on whether the matter was - . taken up on appeal, Mr. Nasimire conceded that it was · not raised. He .. nevertheless stuck to his guns that it was an error apparent on the face of the record. 3 . ·-, ·. - .. ~~ _·· ' , '.• ,:.. :~- : : ': . \-;- ;_;_•~:.•n ;_<-\ ;·; ---~~ :~ :-· - . .. :;_ :.- . :"' ~ ·~- - • ~ • ~ .--'l : :. : .;.'...~ • •. : ~ - ; I• ".° ,;·, ' On the other hand, the respondent /Republic was represented by Ms Bibiana Kileo, learned State Attorney. She was clear that they were resisting the application. Submitting on the first limb of the lone ground of review, Ms Kileo was firm that the alleged misinterpretation of section 203 (a) of the Penal Code was a misconception because that allegation cannot be arrived at in isolation . of the evidence, the weight to be attached thereto, and credibility of the witnesses. To do so, she said, would be tantamount to rehearing the appeal. She referred us to the case of Asia Rashid Mohamed v. Mgeni Seif, Civil Appeal No. 9 of 2012, CAT (unreported). On non direction, Ms Kileo submitted that the point that the trial judge allowed himself and the assessors to cross examine the witnesses was not raised and it did not transpire in the Court of Appeal, therefore that to raise it now is tantamount to calling the Court to re-assess the evidence on record which is improper as it is not an appeal. In sum, Ms Kileo urged the Court to find the application devoid of merit and dismiss it. 4 It is incontrovertible that in order to succeed in an application such as the present, the applicant must aver one or more of the grounds slipulated • . . under Rule 66 (1) of the Rules. That Rule provides that:- "R. 66 (1): The Court may review its judgment or order, but no application 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 the ' record resulting in the miscarriage of justice; 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." In- our present matter, the applicant picke~ ground (a) thereof that the .1 decision being complained of was based on a manifest error on the face of the record resulting in miscarriage of justice. We have found it imperative to begin by exploring what the words "an error on the face of the record" entails. 5 .. . .,; . '• ...... .· < . -_ ·~~. ,iJ~_.-~;' :_..... : -~.... , ·. .: : -...... ' -. .,.:_ . :·', :~ -:~: <: _ . The meaning of those words was discussed at great length by the Court in Tanganyika Land Agency Limited and 7 Others v. Manohar Lal Aggrwal, Civil Applkation No.17 of 2008, CAT (unreported), among others, in which the Court desired to be guided by the persuasive decision in the Indian case of M/ s Thunga Bhadra Industries Ltd v. The Government of Andra Pradesh, AIR 1964 SC 1372. In that case, the Court stated at page 1377 that:- ' '}'.! review is by no means an appeal in disguise whereby an -erroneous decision is reheard and corrected but lies only for patient error. We do .not consider that this furnishes a suitable occasion for dealing ·with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error t apparent.~ on the face of the record would be made out." [The emphasis is ours]. On page 7 in Tanganyika Land Agency Limited and 7 Others v. Manohar Lal Aggrwal (supra), the Court captured three ingredients of an 6 ->"I ,• • • • , ; :.i·. .- '' . ,_ -~ - ,.._ - ·~ · .• r- :.: - -~-:_ :-._::.,;-...: ~ , operative error; one that there ought to be an error, two that, the error has to be manifest on the face of the record, and three • that, the error must have resulted in miscarriage of justice. The Court stressed on that very page however, that:- "[An] error on the face of the record ... must be an obvious and patient mistake and not something which can be established by a long drawn process of reasoning on points which there may conceivably be two opinions... " Jt concluded that "a decision [that] is erroneous in law is no ground for ordering review." After carefully considering the able arguments of counsel for the parties on the points raised by Mr. Nasimire, we hasten to say that the submission in favour of the applicant have fallen short of convincing us that there is merit in the lone ground argued. We will elaborate, beginnir1g with the complaint touching on misinterpretation of section 203 (a) of the Perial Cqde. To start with, we appreciate that after the autopsy report was . expunged from record by the Court for having not been properly admitted , and received as evidence, section 203 (a) of the Penal Code was invoked . . in 7 ·· .... ,, • .r-:· ; . . -.. - -~- ·: ·~·-.. -~. :. _\-; ..- . ,, ·-·- ' • - ~ • - • f • ~ ..... ·, -·t~= ;,.- .:,, . : ,: . ;' "" the context of the continuation of the discussion of circumstantial evidence touchlng on the act of torching the deceased on the basis of'which it was • . . . (the Court) satisfied that the applicant was the causer of deceased's death. The said circumstantial evidence was found to be strong enough to dislodge the possibility of having the deceased died of any other cause. At any rate, we are of the firm view that whether or not it was an error to cite section 203 (a) of the said Act, we agree with Ms Kileo that it cannot be said it was apparent on the face of the record without linking this to the analysis of the evidence on record, that is, admissibility, weight and credibility. See the case of Asia Rashid Mohamed v. Mgeni Seif (supra). In view of the above, we find and hold that this point has failed the test of what may be regarded as "an error on the face of the record" which is that,. it has to be one in which a person may point to the error and - . say here is a substantial point of law which stares one in the face, thereby making a clear case of an error apparent on the face of the record. As such, this point fails. : As regards the complaint of non direction, we once again agree with Ms Kileo, that since it was not raised and it did not transpire in the Court of Appeal, to raise it now is tantamount to calling the Court to re-assess the 8 evidence on record which is improper as it is not an appeal. Besides, we have completely failed to infer mrscarriage of justice in the light of that complaint . • This point too is devoid of merit. For reasons we have covered above, we find that the application lacks merit and we dismiss it. DATED at MWANZA this 19th day of March, 2015. M.S.MBAROUK ·JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL B. M. MMILU\ JUSTICE OF APPEAL - I certify that this is a true copy of the· original. ~ · P. W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 9