kombo omary vs republic 2010 tzca 38 13 march 2010

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA CRIMINAL APPLICATION NO. 4 OF 2009 KOMBO OM ARY............................................................ APPLICANT

VERSUS THE REPUBLIC....................................................... RESPONDENT Application for Extension of Time to file Review from the decision of the Court of Appeal of Tanzania at Tanga) (Msafre. J.A., Kileo, 3.A.. And Kaleoeva, J.A.l dated the 5th day of July, 2007 in Criminal Appeal No. 211 of 2005

RULING 12 & 17 March, 2010 MUNUO, J.A.: The applicant, Kombo Omary, brought a Notice of Motion seeking extension of time to apply for review in Criminal Appeal No. 211 of 2005 in this Court. He deponed to an affidavit in support of the application saying that he was not satisfied with the conviction and sentence imposed on him. At the hearing, the applicant appeared in person and complained that he is a layman and being a prisoner there was nothing he could do to remedy this delay in applying for review. He insisted that the delay occurred because he was transferred to Ukonga prison at Dar es Salaam and back to Maweni, Tanga. Hence the delay in seeking the intended review. The Republic was represented by Mr. Oswald Tibabyekomya, learned Senior State Attorney. He faulted the affidavit in support of the application for being fatally defective, citing the case Salima Vuai Foum versus the Rjgistrar of Cooperative Societies and Three Others (1995) TLR 75 in which the Court held that - (i) Where an affidavit is made on information; it should not be acted upon by any court unless the sources o f information are specified. In this application, the learned Senior State Attorney submitted, the affidavit in support of the application lacks a verification clause and it does not disclose the sources of information so it is fatally defective and it ought to be disregarded

altogether. Furthermore, the learned Senior State Attorney observed that there is no sufficient ground for extending time because the applicant has not shown any substantial ground for delaying the intended 2 review, citing the case of Miraji Seif versus Republic, Criminal Application No. 2 of 2009 (CA) (unreported). i The issue is whether there is justification for extending the time for applying for review. A reading of th& affidavit, which as the learned Senior State Attorney observed, is defective for lack of verification, it appears to me that the applicant is in fact challenging the decision passed against him when the Court dismissed his appeal for being devoid of merit. Which is to say, the applicant is appealing or reopening the appeal which has been finally determined by the Court. Our legal system does not cater for that type of situation because the Court of Appeal is the highest court of the land. Review is provided for under Rule 66 of the Court Rules, 2009 which states inter-alia\ 66 (1) The Court may review its judgement or order, but no application for review shall be entertained except on the following grounds - 3 (a) the decision was based on a manifest error on the face o f the record resulting in the mis­ carriage o fjustice; or (b) a party was wrongly deprived o f ■ 'i ''" ■ ■ 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 judgement was procured illegally, or by fraud or perjury. Whereas the applicant is challenging the decision of the Court, he has not shown any of the above grounds of review in his affidavit in terms of a manifest error apparent on the face of the record or not being accorded a hearing or the decision being invalid in law or the court lacking jurisdiction or the judgement being procured illegally, fraudulently or through deception. Under the circumstances the application for extension of time is devoid of merit. For want of sufficient ground for extending the period of applying for review, I accordingly dismiss the application for lacking merit. DATED at TANGA this 13th day of March, 2010. E. N. MUNUO

JUSTICE OF APPEAL I certify that this is a true copy of the original. 5