RULING CRIMINAL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MWANDAMBO, 3.A., FIKIRINI, 3.A. And NGWEMBE. J.A/l CRIMINAL APPLICATION NO. 49/08 OF 2020 JINTA LUSAGULA......................................................................... APPLICANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Application for review from the decision of the Court of Appeal of Tanzania, at Tabora) ( Msoffe. Kimaro and Miasiri, JJA.^ dated the 17th day of March, 2014 in Criminal Appeal No. 426 of 2013. RULING OF THE COURT 12th & 14th June, 2024 NGWEMBE. JA.: In this application, the applicant through a notice of motion under Rule 66 (1) of the Tanzania Court of Appeal Rules of 2009 (the Rules) is seeking review of the Court's decision in Criminal Appeal No. 426 of 2013, dated 17th March, 2024, which dismissed the applicant's appeal against conviction and sentence for murder. i Before the Court on appeal, the applicant challenged the decision of the High Court on three grounds, where the Court in its determination compressed them into two grounds namely: whether or not the appellants were properly identified by PW1; and whether or not the conviction o f the appellants was against the weight o f the evidence. Being the first appellate Court from the trial High Court, after its due evaluation of the evidence on record, including the judgment of this Court found the appeal without any merit and dismissed it. In arriving at that conclusion, the Court was satisfied that the single witness at the scene of crime positively identified the applicant in the light of the conditions set out in the case of Waziri Aman v. Republic [1980] TLR 250. The Court was satisfied that the single witness at the scene of crime was credible and reliable to support a finding of positive identification of the appellant. Consequently, it concurred with the trial court's findings on his guilty, conviction and sustained the sentence. In his notice of motion, the applicant is seeking review of the judgment on the grounds that: 1. The decision of the Court in Criminal Appeal No. 426 of 2013 was based on manifest error apparent on the 2 face of the record which occasioned miscarriage of justice on the part of the applicant. 2. The decision of the Court was a nullity for being arrived based on proceedings and judgement which were nullity ab initio. The application was supported by the applicant's own affidavit, while the respondent Republic did not file any affidavit in reply. At the hearing of this application, the applicant entered appearance unrepresented. Ms. Alice Thomas, learned State Attorney appeared for the respondent Republic. When invited to elaborate on his application, the applicant preferred to let the learned State Attorney submit first and rejoin thereafter if need would arise. Ms. Thomas preferred to address the Court on points of law only because the respondent Republic did not file an affidavit in reply. She briefly addressed the Court on the jurisdiction of the Court to review its own decisions pursuant to section 4 (4) of the Appellate Jurisdiction Act read together with Rule 66 of the Rules. On the contrary, she argued that, neither in the notice of motion nor in the supporting affidavit, has the applicant advanced reason or pointed out any error apparent on the face of the record. She buttressed her argument with the case of Patrick Sanga v. Republic, Criminal Application 3 No. 8 of 2011 and Bore Clif v. Republic, Criminal Application No. 35/11 of 2021 (both unreported) where the Court stressed as follows: "/I ca ll to re-assess the evidence, in our respectful opinion, is an appeal through the back door. The applicant and those o f his like who want to test the Court's legal ingenuity to the lim it should understand that we have no jurisdiction to s it on appeal over our own judgm ents". Ms. Thomas urged the Court to reject the invitation to review its own decision under the principle that litigation must come to an end. When the applicant was invited to respond to the learned State Attorney's argument, he urged the Court to consider the contents of his notice of motion and the supporting affidavit and implored the Court to do justice to him. The applicant contends in his application that, while in the trial, there were two accused persons. The trial court recorded a single plea of not guilty and so it remains unclear whether it was in respect of the applicant or his co­ accused. Another complaint is on the manner adopted by the trial court that condemned them unheard by holding that they committed the offence of murder in a ruling on whether there was a case to answer or not. On that 4 basis, he contends that, the trial judge made up his mind that they were guilty of the offence before they gave their defence evidence. In our considered view, the complaints in the application are misplaced because at this stage, the Court has no jurisdiction to determine matters which ought to have been brought before us at the hearing of the appeal. As correctly submitted by Ms. Thomas, the provisions of Rule 66 (1) of the Rules are clear that is, no order of review can be granted by this Court outside the five grounds itemized in the Rule. In relation to the first ground based on a manifest error on the face of record as provided for under Rule 66 (l)(a) of the Rules, we need not do better than reiterating the Court's utterance in its previous decisions, notably, Chandrakant Joshubhai Patel v. Republic [2004] T.L.R. 218. What emerges from that decision is that, manifest error as an error apparent on the face of the record which can be seen by one who runs and reads, that is; an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. That stance has been reiterated in many cases including, Attorney General v. Mwahezi Mohamed & Others (Civil Application No. 314 of 2020) [2020] TZCA 1828 (22 October 2020), where 5 the Court stressed that, manifest error on the face of record means an error evident from the record that does not require scrutiny, arguments and clarification either of facts, evidence or legal exposition. The Court in the latter case elaborated the term 'record' as appears in Rule 66 as under: 'W e think, we should pause here and refresh our m ind on what record is referred in an application for review. 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 determ ine an application for review a ll it needs to have before it is the impugned decision and not the evidence adduced during tria l or decisions... We need to emphasize here that, the record referred in review is either the "judgment" or "order" subject o f review. It m ust be noted that as the com plaint o f the applicant is that the judgm ent o f the Court contains errors apparent on the face o f record, it is his duty to show the said errors from the respective judgm ent. Thus, the applicant cannot com pel the Court to fish out the errors from the record o f appeal instead o f the judgm ent which com prises the facts, the law and the reason for the decision", [at pages 14 - 15) 6 Guided by the above exposition, the question is whether the grounds in the notice of motion meet the threshold tests warranting review. It is glaring that the applicant alleges manifest error in the proceedings of the High Court distinct from the impugned judgment of the Court, subject of this application. This means that he is moving the Court to declare its own decision a nullity not by any error in its judgment but through examination of the proceedings before the High Court. Even if there would be such errors in the record of the High Court, such errors would not be the business of this Court in review, but, at best grounds of appeal. This is because an error on the face of the record in light of the Court's decision in Isaya Linus Chengula v. Frank Nyika (Civil Application No. 487 of 2020) [2022] TZCA 167 (31 March 2022), must be an error in the judgment, ruling or order of the Court. The applicant's complaint in respect of plea taking and propriety of the ruling on a case to answer are beyond the parameters of the Court's jurisdiction in review under Rule 66(1) of the Rules. The rationale of the above principle was well considered in the case of Patrick Sanga (supra) that encouraging review on matters that are not in the record in terms of rule 66 (1) is against public policy that there must be an end to litigation. Therefore, we are entirely in agreement with the learned State Attorney that the application is nothing but an attempt to invite the Court to sit as an appellate Court against its own judgment which we are not ready to do. In view of the above analysis, we find this application wanting in merit and accordingly dismiss it. DATED at TABORA this 14th day of June, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 14th day of June, 2024 in the presence of the Applicant in person, and Mr. Nurdin Mmary, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 8