CRIMINAL APPLICATION NO 22 01 OF 2022 LEONIDA LOI KABI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE, J.A.. MWAMPASHI, J.A., And MURUKE, J.A.) CRIMINAL APPLICATION NO. 22/01 OF 2022 LEONIDA LOI K A B I..................................................................... APPLICANT VERSUS THE REPUBLIC..................................... ........ .....................RESPONDENT (Application for Review from the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) fMkuve. Sehel and Galeba. JJ.A.) dated the 26th day of January, 2022 in Criminal Appeal No. 05 of 2020 RULING OF THE COURT 22 iC' April, & 7th May, 2024 MWAMPASHI. J.A.: The Court, in this application, is being asked by the applicant, Leonida Loi Kabi, to review its own decision in Criminal Appeal No. 05 of 2020 (Mkuye, Sehel and Galeba, JJA.) dated 26.01.2022. Initially, the applicant herein, together with her husband and one another person, who are not parties to this application, stood charged, before the Resident Magistrates' Court of Dar es Salaam at Kisutu (the trial court), with three counts, to wit, leading organized crime contrary to paragraph 4 (1) of the First Schedule to and sections 57 (1) and 60 (1) of the Economic and Organized Crime Control Act [Cap. 200 R.E. 2002] (the EOCCA) and two counts of unlawful possession of government trophies contrary to section 86 (1), (2) (c ) (ii) and (3) (b) and Part I of the First Schedule to the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14 (d) of the First Schedule to and sections 57 (1) and 60 (1) of the EOCCA. Briefly, the material facts from which the instant application arises are as follows: Acting on information received that the applicant and her husband were in possession of certain stolen properties at their home at Kimara Stopover within the city of Dar es Salaam, a search in their house was conducted on 27.10.2012. In that search, 210 elephant's tusks and 5 pieces of bones weighing 450.6 kgs valued atTshs. 2,206,611,000/= were found hidden in twelve sulphate bags covered by the Tanzanian National Flag. Subsequently, as we have alluded to above, the applicant, together with her husband and one another person, were charged with the above three named counts before the trial court. After a full trial, the trial court convicted and sentenced the applicant to fifteen (15) years imprisonment for the 1st count and twenty (20) years imprisonment for each of the 2nd and 3rd count. The applicant's first appeal to the High Court was dismissed in its entirety and the imprisonment of twenty (20) years on the 2nd and 3rd counts was enhanced to twenty-five (25) years for each of the two counts with an order for the said sentences to run concurrently. On the 2nd appeal to this Court, the applicant's appeal partly succeeded. The conviction on the 1st count was quashed and the relevant sentence set aside. However, the conviction on the 2nd and 3rd counts was confirmed but the sentence enhanced by the High Court on the two counts was reduced to twenty (20) years imprisonment. In addition, the Court ordered the applicant to pay an amount of money equivalent to ten times the value of the government trophies in question. Still aggrieved and there being no further possible appeal, the applicant preferred the instant application beseeching the Court to review its decision. The application is brought by way of a notice of motion and it is predicated on rule 66 (1) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is also supported by an affidavit sworn by the applicant and in opposition, there is an affidavit in reply affirmed by Mr. Ismael Ibrahim Lulambo, learned State Attorney. Basically, according to the notice of motion, the application is predicated on two grounds: 1. That the decision of the Court was based on a manifest error on the face o f the record resulting in the miscarriage o fjustice as there were several procedural irregularities in the prosecution case which ought to have been resolved in favour o f the applicant. 2. That the applicant was wrongly deprived o f an opportunity to be heard as her defence was not considered as it was rightly pointed by the Court at page 37 o f the judgment 3 When the application was called on for hearing before us, whereas the applicant appeared in person and fended for herself, Ms. Dhamiri Masinde and Mr. Ismael I. Lulambo, both learned State Attorneys, appeared for the respondent/Republic. In her very short submission, the applicant just prayed for the grounds of her application to be considered by the Court and for the application to be granted as sought in the notice of motion. On her part, Ms. Masinde began by expressing her stance that she is not in support of the application because it is misconceived and baseless. Ms. Masinde submitted that the grounds upon which an application for review has to be predicated upon, are listed under rule 66(1) of the Rules and further that although, according to the notice of motion, the application is grounded under rule 66(l)(a) and (b) of the Rules, that, there is an error apparent on the face of record and also that the applicant was not afforded the right to be heard, the same has not been substantiated by the applicant neither in her supporting affidavit nor in her brief submission. Regarding the applicant's ground that there is an error apparent on the face of the record, it was Ms. Masinde's argument that what is being complained of by the applicant as an error apparent on the face of the record are irregularities in the trial which were noted by the Court and resolved. She contended that the applicant's dissatisfaction with how the Court resolved the irregularities in question cannot be a ground for a review. To bolster this argument, Ms. Masinde referred us to our earlier decision in the case of Said Shaban v. Republic, Criminal Application No. 07 of 2011 (unreported). As for the second ground that the applicant was deprived of her opportunity to be heard because her defence was not considered, Ms. Masinde referred us to page 37 of the judgment of the Court and argued that, the applicant's defence was considered by the Court. She explained that having noted that the applicant's defence was not considered by the lower courts, the Court stepped into the shoes of the lower courts, considered the defence but ended up refusing it. She thus submitted that the complaint by the applicant that she was not afforded an opportunity to be heard is devoid of merit. Finally, placing reliance on the case of Patrick Sanga v. Republic, Criminal Application No. 08 of 2011 (unreported), Ms. Masinde insisted that there must be an end to litigations. She thus prayed for the application to be dismissed. In rejoinder, the applicant reiterated her prayer for the application to be granted. 5 In view of the notice of motion, the affidavits and the submissions made for and against the application, the only issue for our determination is whether, when subjected to the premises of the law governing applications for review, the application has merits or not. Whereas the power of the Court to review its own decisions is derived from section 4 (4) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] (the A]A), rule 66(1) of the Rules, provides for the scope of the powers andstipulates grounds upon which an application for review can be predicated, that: "66(1) The Court may review its judgment or order, but no application for review shaii be entertained except on the foiiowing grounds- (a) the decision was based on a manifest error on the face o f the record resuiting in the miscarriage o fjustice; or (b) a party was wrongly deprived o f an opportunity to be heard; or (c) the court's decision is a nullity; or (d) the court had no jurisdiction to entertain the case; or (e) the jurisdiction was procured illegally, or by fraud or perjury." As we have earlier pointed out, the first ground for the review which is premised on rule 66 (1) (a) of the Rules, is to the effect that the decision sought to be reviewed is based on a manifest error on the face of record resulting in the miscarriage of justice. The basis of this complaint by the applicant is the manner the Court resolved and decided the applicant's 1st ground of her appeal which was about the failure to re-issue the DPP's consent and the certificate conferring jurisdiction to subordinate court to try economic offences after the original charge was amended and substituted to accommodate three accused persons instead of four. After noting the omission to re-issue the consent and certificate, the Court stated that: "In this regard, considering the circumstances o f this case, we are o f the settled view that failure to issue a new consent and certificate after having substituted the charge by removing the J d accused, did not vitiate the former consent and certificate as the jurisdiction which was conferred to the Resident Magistrates' Court o f Dar es Saiaam at Kisutu in relation to the offences of unlawful possession o f government trophies remained undisturbed. Therefore, except for the offence o f leading organised crime, we find that this ground o f appeal is devoid o f merit and dismiss it". It is the above decision of the Court on the 1st ground of appeal which, to the applicant, constitutes an apparent error on the face of the 7 record. The immediate issues that arise here is, firstly, whether what is being complained of by the applicant is an apparent error on the face of the record within rule 66 (1) (a) of the Rules and secondly, if the answer to that first issue is in the affirmative, whether the said error resulted in the miscarriage of justice. This takes us to the task of determining the definition and meaning of the phrase "a manifest error on the face of the record". Luckly, the phrase "a manifest error on the face of the record" has already been defined by the Court in a number of its decisions including the decisions in the case of Tanganyika Land Agency Limited and 7 Others vs Manohar Lai Aggrwal, Civil Application No. 17 of 2008, John Kashindye v. Republic, Criminal Appeal No. 16 of 2014, Masudi Said Seleman v. R, Criminal Application No. 92/07 of 2019 (all unreported) and Chandrakant Joshubhai Patel v. Republic [2004] T.L.R. 218, to mention but a few. In Tanganyika Land Agency Limited and 7 Others (supra), the phrase was defined as follows: must be an obvious and patent mistake and not something which can be established by a iong- drawn process of reasoning on points which there may conceivably be two opinions". Further, in Chandrakant Joshubhai Patel (supra), the Court considered the phrase "a manifest or apparent error on the face of the record" thus: "...an error apparent on the face o f the record must be such as 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 o f reasoning on points on which there may conceivably be two opinions... But it is no ground for review that the judgment proceeds on an innocent exposition o f the law...A mere error o f law is not a ground for review under this rule. That a decision is erroneous in law is no ground for ordering review." Subjecting the complaint by the applicant that the irregularities noted by the Court were not resolved in her favour to the above definition, it becomes obvious that the complaint is not an error within the meaning of rule 66 (1) (a) of the Rules. As correctly submitted by Ms. Masinde, the complaint cannot constitute a ground in review. Clearly, the complaint by the applicant is an expression of her dissatisfaction of the decision by the Court in finding that the irregularity or omission not to re-issue new consent and certificate did not vitiate the former consent and certificate. In Shadrack Balinago v. Fikiri Mohamed @ Hamza and 2 Others, Civil Application No. 25/8 of 2019 (unreported) the Court stressed on the position that a mere dissatisfaction with a court decision does not constitute an apparent error on the face of record, by stating that: "Where an applicant for review is dissatisfied with the judgment o f the court, the said fact is not sufficient to deserve a review o f the judgment o f the Court. Thejudgment o f the court may contain some minor errors here and there, .... but that is not a justification for seeking review". Again, in the case of Omar Mussa @ Selemani @ Akwishi and 2 Others v. Republic, Consolidated Criminal Applications Nos. 117, 118 & 119/07 of 2018 (unreported), the Court reiterated what was stated in Patrick Sanga (supra) thus: " The review process shouid never be allowed to be used as an appeal in disguise. There must be an end to litigations, be it in civil or criminal proceedings. A call to re- assess the evidence, in our respectful opinion, is an appeal through a back door. The applicant and those o f his like who want to test the Court's legal ingenuity to the limit should understand that we have no jurisdiction to sit on appeal over our own judgments. In any properly functioning justice system, like ours, litigations must have finality and ajudgment o f the final court in the land is final and its review shouid 10 be an exception. That is what sound public policy demand". Guided by the above stated position of the law, we find that the applicant has totally failed to establish that there is any manifest error on the face of the decision of the Court sought to be reviewed. All what the applicant has attempted to do is to invite us to re-hear her appeal. The second ground predicated upon rule 66 (1) (b) of the Rules, on the complaint that the applicant was deprived the right to be heard because her defence was not considered should not detain us at all. As rightly argued by Ms. Masinde, the applicant's defence was considered by the Court. At page 37 of the judgement the Court noted that the two lower courts had not considered the applicant's defence and stepped into the shoes of the lower courts by considering the defence. The Court observed that: "On ourpart, having perused the record o f appeal, we think, the appellants'complaint is tenable. It is true that the trial court did not consider the defence evidence apart from summarising it This being the case it was incumbent upon the 1st appellate court to re-evaluate the evidence and come up to its own finding. As was alluded to above, that it did not do. However, we still think that we are entitled to look at the defence ii evidence and make our own finding - See Mzee Ally Mwinyimkuu @ Babu Seya v. Republic, CriminalAppeal NoA99 of 2012 (unreported). On the basis o f that power, we have duly considered the appellants' defence evidence. Generally speaking,\ as alluded to above, the appellants' defence was a total denial to the offence. Both appellants did not raise doubt from the prosecution's evidence. ... As to the 2nd appellants (applicant) defence that she was at home on the materia! date and that the stolen properties were recovered from the house she lived with her husband and that she signed the certificate o f seizure/ we think, it supports the prosecution's evidence. Therefore, we are still satisfied that their defence did not raise any reasonable doubt to shake the prosecution case", [emphasis supplied] As demonstrated above, the applicant's defence was considered. The fact that her defence was rejected does not mean that it was not considered. As it was for the first ground of review, the second ground is as well found without merit and it is accordingly dismissed. 12 In the final analysis and for the above reasons and observations, we find that this application is baseless and devoid in merit. The application is thus, hereby dismissed accordingly. DATED at DAR ES SALAAM this 2ndday of May, 2024. R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered on this 7th day of May, 2024 in the presence of the appellant in person and Ms. Pancrasia Protas, learned Senior State Attorney for the respondent/Republic is hereby certified as a true copy of the original. . KAMALA f REGISTRAR f OF APPEAL 13