livinus uzo chime ajana vs republic 2023 tzca 17446 21 july 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CRIMINAL APPLICATION NO. 72/01 OF 2020 (CORAM: MWAMBEGELE. J.A.. MWAMPASHI. 3.A. And MGONYA. 3.A.1 * LIVINUS UZO CHIME AJANA ....... ............................... ........ APPLICANT VERSUS THE REPUBLIC............... .......................... ............................... RESPONDENT (Application for Review from the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) (Mwanaesi, Mwambeaele and Levira. JJ.A.) dated the 07th day of August, 2020 in Criminal Appeal No. 13 of 2018 RULING OF THE COURT 5th & 21st July, 2023 MWAMPASHI. J.A.: The applicant, Livinus Uzo Chime Ajana, has filed this application asking the Court to review its decision arising from Criminal Appeal No. 13 of 2018 dated 07.08.2020. Initially, the applicant was charged in the High Court of Tanzania at Dar es Salaam (the trial Court) in Criminal Sessions Case No. 27 of 2015, with the offence of trafficking in Narcotic Drugs contrary to section 16 (1) (b) (i) of the Drugs and Prevention of Illicit Traffic in Drugs Act [Cap. 95 R.E. 2002] (the Drugs Act). He was convicted and sentenced to serve a period of 32 years in prison and pay a fine of TZS. 96,564,000/=. Aggrieved, the applicant unsuccessfully appealed to this Court vide Criminal i Appeal No 13 of 2018 which was dismissed on 07.08.2020. Besides the appeal being dismissed, the sentence which had been ordered by the trial Court to run from the date the applicant was detained in remand prison, was ordered by the Court to run from the date he was convicted. The background facts from which the instant application emanates, albeit in brief, are as follows; On 03.03.2011, the applicant, a Nigerian by nationality, who had visited Tanzania, was at Julius Nyerere International Airport ready to board Kenya Airways enroute to Nigeria via Nairobi Kenya, when he was intercepted by security officers following the detection of suspicious substances in his bag by the security screening machine. The police officers dealing with illicit drugs were alerted and when the bag was physically searched, 38 pellets of substance suspected to be narcotic drugs, were recovered from the bag. That was not the end of the story. The applicant was also suspected to have swallowed some other suspicious substances and when he was put under observation in a special room, he excreted through his rectum 16 more pellets in three intervals, making the total pellets found in his possession to be 54. The search made to the applicant's bag and the excretion of the 16 pellets by the applicant was witnessed by police officers from the Anti- Drugs Unit (ADU), airport security officers and officers from Tanzania Revenue Authority and Immigration department. The 54 pellets, which were later, during the trial, tendered in evidence as exhibit PI, were labelled and sealed at the ADU offices before being sent to the Chief Government Chemist where the suspected substance in the pellets was chemically analysed and proved to be narcotic drugs. A certificate of analysis containing the results of the analysis was later tendered in evidence as exhibit P2. In proving the offence against the applicant, the prosecution paraded 14 witnesses and tendered in evidence 10 exhibits. On his part, the applicant who was a sole witness in his defence, denied to have been, in any way, involved with the narcotic drugs in question. He maintained that he had been in Tanzania for hotel business and that he was arrested at the airport where he had gone to see off one of his friends who was travelling back to Nigeria. As we have alluded to above, the trial Court found the applicant guilty, convicted and sentenced him accordingly. The applicant's appeal to this Court having been dismissed, as we have alluded to earlier and the applicant still believing in his innocence, he resolved to lodge the instant application seeking for a review of the said decision of the Court. The application is brought by way of a notice of motion under section 4 (4) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] (the ADA) and rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules), and it is supported by an affidavit sworn by the applicant. According to the notice 3 of motion, the impugned decision of the Court suffers from a manifest error on the face of the record resulting in the miscarriage of justice hence warranting a review of the decision on the grounds that: (3) The Court being a first appellate court faiied to realize that the trial Judge did not sum up and address the assessors on vital points o f law and thus barring the assessors from giving their opinion on matters o f law involved in the determination o f the case as evident in the summing up notes; (b) The Court mistakenly imported extraneous matters in its judgment while dealing with the 2nd and 5th grounds to the effect that PW3 labelled the 38 and 11 pellets, both part o f Exh. PI, on the J d and &h day o f March 2011 respectively, while the same is not borne out o f the record; (c) The Court mistakenly believed that the 54 pellets constituting Exh. PI were labelled while the evidence or record is silent whether the pellets were individually labelled in compliance with the PGO 229 paragraph 12; (d) The Court mistakenly held that there was no investigator with requisite mandate to label the pellets at the point o f arrest and seizure in compliance with PGO 229 paragraph 8f while the same is not borne out from the record as evidence on record shows PW12 one A/Insp. Wamba is an investigator; (e) The Court failed to realize that although PGO 229 paragraph 8 was not complied with due to lack o fan investigator at the locus in quo, still the police officers (PW5, PW6, PW7 and PW12) failed to comply with PGO 229paragraph 3 and 4 that deal with situations where an investigator is unavailable at the locus in quo; and (f) The Court applied double standards while dealing with the trial court's sentence and failed to interfere with the sentence while it was manifestly excessive considering that the applicant is a first offender and had already spent several years behind bars in remand prison. When the application was called on before us for hearing, the applicant appeared in person unrepresented whereas the respondent Republic, had the services of Messrs. Erick Shija, Rockus Komba and Titus Aron, all learned State Attorneys. Upon being invited to argue his grounds of application, the applicant adopted his written submissions he had earlier filed on 09.07.2021, as well as the supporting affidavit and his list of authorities lodged on 23.06.2023. Having done so, without further ado, the applicant urged us to grant the application. Let us begin by looking at the substance of the applicant's written submissions relevant to the grounds raised in support of the application. In his endeavour to substantiate his contention that the Court's decision was based on a manifest error on the face of the record, the applicant started by raising, a new ground of complaint that the Court failed to consider and wrongly interpreted section 38 (1) and (3) of the Criminal Procedure Act [Cap. 20 R.E. 2019] (the CPA). It was submitted that the Court erred in agreeing with the respondent that the need for search warrant or seizure certificate in the instant matter did not arise. He further submitted that section 42 (1) of the CPA was wrongly interpreted and applied by the Court. To concretize his argument the applicant referred us to the decision of the Court in Julius Matama @ Babu Mzee Mzima v. Republic, Criminal Appeal No. 137 of 2015 (unreported). Unfortunately, there was no response from Mr. Shija on this ground. It is our considered view that the above ground of complaint should not detain us at all and that the same can conveniently be disposed of at this very stage. Apart from the fact that the ground appears to be a fit ground of appeal rather than review, the same has not been properly raised. The ground has been brought up in the written submissions and without leave of the Court. According to rule 48 (1) of the Rules, grounds for reliefs sought in formal applications, like the application at hand, shall be stated in the notice of motion. For the above given reasons, we outrightly dismiss the said new ground of complaint. Grounds (b), (c), (d) and (e) were combined and argued conjointly by the applicant. The main complaint under these four grounds of complaint in substantiating the contention that the decision of the Court was based on a manifest error on the face of the record, is that, in its decision the Court failed to observe that the 54 pellets of narcotic drugs in question (Exhibit PI) were not properly labelled in accordance with PGO 229, not sealed and handled hence subjected to possibilities of being tampered with. It was further submitted that paragraphs 3, 4, and 12 of the PGO 229 were contravened and wrongly interpretated by the Court. The Court is also faulted for holding that the police officers who were present during the arrest of the applicant, the search on his bag and those who were present when some of the pellets were allegedly being excreted by the applicant, were not investigators of the case while PW5 and PW12 introduced themselves as such and stated that their duties included conducting investigations. On this, we were referred to our decisions in Alberto Mendes v. Republic, Criminal Appeal No. 473 of 2017 and Slahi Maulid Jumanne v. Republic, Criminal Appeal No. 292 of 2016 (both unreported). In his further attempt to show that there was a manifest error on the face of the record, the applicant complained that the shoes and socks in which the 38 pellets were allegedly found in the bag, were not tendered in evidence to prove that the pellets were really recovered from the bag. This, to him, constituted a manifest error on the face of the record. In regard to ground (a) it was simply submitted by the applicant that the Court failed to observe that in summing up to the assessors, the trial Court did not address the assessors on vital points of law hence denying them an opportunity to give their respective informed opinion on matters of law involved. Finally, on ground (f) of complaint, it was submitted by the applicant that the Court erred in law in confirming the excessive sentence imposed by the trial Court without taking into consideration the period the applicant had spent in remand waiting for his trial and the fact that he was a first offender. It was insisted by him that since he had spent seven (7) years from March, 2011 when he was arrested and detained to August, 2017 when he was convicted, then the Court ought to have not ordered the sentence to run from the date he was convicted. He thus insisted that the Court ought to have interfered with the excessive sentence imposed by the trial Court. On this, the applicant relied on the decision of the Court in the case of Hole Shija v. Republic, Criminal Appeal No. 357 of 2013 (unreported). 8 On the above submissions, the applicant urged us to allow the application and grant the reliefs sought in the notice of motion. Upon taking the floor, Mr. Shija intimated, at the outset, that he was opposing the application because it is misconceived and devoid of merit. In his brief but focused submission, Mr. Shija, submitted that the applicant, who has premised his application on rule 66 (1) (a) of the Rules, has completely failed to establish that the impugned decision of the Court was based on any manifest error on the face of the record to warrant review. Beginning with grounds (a) (e) and (f), he submitted that under those three grounds, the Court is invited to re-assess the evidence which is out of the scope and not within the jurisdiction of the Court in review. To cement his argument Mr. Shija referred us to the decision of the Court in the case of Wambura Evarist and 6 Others v. Republic, Civil Application No. 127 of 2011(unreported) where the Court reproduced what had earlier been stated in Richard Mgaya @ Sikubali Mgaya v. Republic, Criminal Application No. 01 of 2010 (unreported) that, to re-assess the evidence is not one of the grounds enumerated under rule 66 (1) of the Rules. Mr. Shija insisted that grounds (a) (e) and (0 do not qualify and are not grounds for review. As regards grounds (b), (c) and (d) it was submitted by Mr. Shija that the grounds do not qualify to warrant review because the issues raised in the said grounds were discussed and fully dealt with by the Court in the appeal. He referred us to pages 19 and 29 of the judgment where, among other things, it was held by the Court that the situation did not call the procedure under section 38 of the CPA but it befitted section of 42 (1) of the CPA and also that tendering the shoes and socks in evidence would have added nothing to the value of evidence obtained from direct testimonies of PW5, PW11 and PW12 who eye-witnessed the recovery of the narcotic drugs from the applicant's bag. Basing on the above submission, Mr. Shija urged the Court to dismiss the application for lack of merit. The applicant had nothing to argue in rejoinder. He only reiterated his prayer that, basing on his written submissions, the application be granted. In consideration of the above submissions for and against the application and in view of the notice of motion and the law governing applications for review, the only issue for our determination is whether the application has merit. While section 4 (4) of AJA confers powers on the Court to review its decisions, rule 66 (1) of the Rules, apart from also vesting such powers to the Court, provides for the scope of the powers and stipulates grounds on which an application for review can be predicated, that: "66f 1) The Court may review its judgment or order, but no 10 application for review shall be entertained except on the following grounds- (a) the decision was based on a manifest error on the face of the record resulting 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 (:) the court had no jurisdiction to entertain the case or; (e) the jurisdiction was procured illegallyor by fraud or perjury." Because, as we have earlier alluded to, the application at hand is predicated upon a single ground stipulated under rule 66 (1) (a) of the Rules, that the decision sought to be reviewed was based on a manifest error on the face of record resulting in the miscarriage of justice, we find it apt, to first appraise ourselves on what does the phrase "a manifest/apparent error on the face of record" mean. Fortunately, the phrase has already been defined by the Court in a countless of cases including Tanganyika Land Agency Limited and 7 Others vs Manohar Lai Aggrwal, Civil Application No. 17 of 2008, John Kashindye vs. Republic, Criminal Appeal No. 16 of 2014, Masudi Said Selemani vs. R, Criminal Application No. 92/07 of 2019 (all unreported) and Chandrakant Joshubhai Patel vs. The Republic [2004] T.L.R. 218, to mention but a li few. In Tanganyika Land Agency Limited and 7 Others (supra), the Court defined the phrase "a manifest/apparent error on the face of record" as follows: "a manifest error on the face o f the record" must be an obvious and patent mistake and not something which can be established by a long-drawn process o f reasoning on points which there may conceivably be two opinions." Further, the phrase "a manifest/apparent error on the face of the record" was considered by the Court in Chandrakant Joshubhai Patel (supra), when the Court quoted with approval an excerpt from the learned authors of Mulla, 14th Edition, that: "...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 thejudgmentproceeds 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. ” 12 Beginning with ground (a) of complaint that, there was an error on the face of the record because the Court failed to observe that the trial Court did not address the assessors on vital points of law, we agree with Mr. Shija that, apart from the fact that this ground does not qualify as a ground for review, the ground is not only completely outside the ambit of rule 66 (1) (a) of the Rules, but the same was never raised and determined by the Court in the impugned decision. We have examined the 14 grounds of appeal which were raised on appeal, as reproduced at pages 5, 6, 7, 8 and 9 of the judgment of the Court, and observed that none of the grounds covered the issue of summing up to the assessors. There is therefore, nothing on the face of the decision of the Court concerning the issue of summing up to the assessors. This Court has no mandate to consider matters which are not on the record of the decision sought to be reviewed. It should be emphasized that the mandate of the Court in review, under rule 66 (1) of the Rules, does not extend beyond examining the record of the decision of the Court sought to be reviewed. As to what does the term "record" referred to under rule 66(1) of the Rules, mean, the Court in the case of The Hon. Attorney General v. Mwahezi Mohamed (as administrator of Estate of the late Dolly Maria Eustace) and Three Others, Civil Application No. 314/12 of 2020 (unreported), stated that: 13 "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 determine [an] application for review all it needs to have before it is the impugned decision and not the evidence adduced during trial or decisions o f subordinate court(s) as submitted by Mr. Malata, We need to emphasize here that, the record referred in review is either the "judgment ' ' or "order" subject of review." [Emphasis added]. Ground (a) of the complaint is, for the above reasons, found unmerited and it is accordingly dismissed. The applicant's grounds of complaint that the impugned decision was based on a manifest error on the face of the record as particularised under grounds (b), (c), (d) and ( e) which fault the Court's finding on the manner the search was done, the handling, sealing and labelling of the 54 pellets of narcotic drugs (Exhibit PI), do not, as rightly argued by Mr. Shija, constitute any apparent error on the face of the record envisaged under rule 66 (1) (a) of the Rules. It is on record that, basing on the evidence on record, the Court properly considered, determined and finally decided on issues regarding the, search, sealing, labelling and handling of Exhibit PI. With 14 regard to the search, the Court, at page 28 of the judgment of the Court, firmly stated that: "After considering the submissions from either side, we are inclined to side with Ms. Matikila that the need for a search order or seizure certificate in the instant matter did not arise due to its urgency... Under the situation', there was no time for the police officers to seek for a search order from the relevant authorities... such situation did not call the procedure under section 38 o f the CPA, but befits section 42 (1) o f the same A c t" Similarly, at page 33 of the judgment, the Court had the following stand on the complaint that Exhibit PI was not properly labelled: ..it was not correct to argue that the narcotic drugs in the instant appeal, were not labelled. According to PW3, they were labelled after they had been taken to the ADU office and marked JNIA/IR/52/2011....the police officers who arrested and seized the pellets from the appellant were not the investigators o f the case and therefore, they lacked the requisite mandate to label them in terms o fparagraph 8 o f the PGO quoted above." Further, at page 31 of the judgment, the Court found that Exhibit PI was properly sealed by PW3 and that its handling had no problem. It stated "On the 8th March, 2011 PW3 parked all the 54 pellets and sealed them in the presence o f the in­ charge o f ADU, the appellant and PW9 ready for sending them to the Chief Government Chemist for analysis... The direct oral testimonies o f PW1, PW2, PW3f PW5f PW9 and PW12 left us with no shred o f doubt that, there was any point in time when the chain o f custody in respect o f the narcotic drugs under scrutiny (exhibit PI) got broken." It is also on record that the issue of the shoes and socks not being tendered in evidence was determined and finally decided by the Court and the same cannot constitute a manifest error on the record. It was observed by the Court at page 29 of the judgment of the Court that: "With regard to the argument by Mr. Mtobesya that the socks and shoes in which the pellets had been wrapped were not tendered in evidence, we are in agreement with the learned State Attorney, that their presence would have added nothing to the value o f the evidence obtained from the direct oral testimonies o f PW5, PW11 and PW12 who eye- witnessed the recovery o f the narcotic drugs the subject o f the charge, from the bag o f the appellant" The above excerpts from the judgment of the Court clearly show that the issues being complained of by the applicant which form part of his 16 grounds for review of the impugned decision, were dealt with, determined and finally decided by the Court in the appeal. The grounds are therefore, dismissed accordingly. As on ground (f) of complaint, regarding the decision of the Court on the sentence, we, as it has been for other grounds, see no manifest error on the face of that decision on the sentence. The Court found that in terms of section 16 (1) (b) (i) of the Drugs Act, the imprisonment sentence of 32 years was not illegal because it fell between the minimum term of twenty (20) years and the maximum term of life imprisonment. The Court found that there was no justification for interfering with the said sentence as imposed by the trial Court save for the running of the sentence which was ordered by the Court to commence from the date when the applicant was convicted and not from the date he was detained in custody as it had been ordered by the trial Court. We see no manifest error on that decision. The fact that the Court did not find the sentence excessive because the applicant was a first offender, does not amount to an error apparent on the face of the record fit for the decision to be reviewed. Finally, it is our considered view that, the fact that the decision by the Court did not appease the applicant even if the decision might have been wrong or erroneous, which, however, is not the case, does not constitute a fit ground for review under rule 66 (1) (a) of the Rules. It should be restated 17 that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for apparent error. See- Chandrakant Joshubhai Patel (supra), where it was also stated that: "....no judgment can attain perfection but the most that courts aspire to, is substantialjustice. There will be errors o f sorts here and there, inadequacies o f this or that kind, and generally no judgment can be beyond criticism. Yet while an appeal may be attempted on the pretext o f any error, not every error willjustify a review." At this juncture we should also repeat what we stated in Tanganyika Land Agency Limited and 7 Others (supra) thus: "For matters which were fully dealt with and decided upon in appeal, the fact that one o f the parties is dissatisfied with the outcome is no ground at all for review. To do that would, not only be an abuse o f the Court process, but would result to endless litigations. Like life, litigations must come to an end." We also find that, in principle, the grounds raised in this application are of that kind which need to be established by a long-drawn process of reasoning and are on issues which may conceivably attract different opinions. Further, even looking at the way they are crafted, the grounds intend to challenge the merits of the judgment of the Court which dismissed 18 the applicant's appeal. They cannot be relied upon as grounds for review. In the decision of the Court in Charles Barnabas v. Republic, Criminal Application No. 13 of 2009 (unreported), it was emphasized by the Court that: "Review is not to challenge the merits o f a decision. A review is intended to address irregularities o f a decision or proceedings which have caused injustice to a party.... a review is not an appeal. It is not a second bite so to speak." In the final analysis and for the above given reasons, we find that the application is devoid of merit and we dismiss it in its entirety. DATED at DAR ES SALAAM this 19th day of July, 2023. J. C. M. MWAMBEGELE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Ruling delivered this 21st day of July, 2023 in the presence of Mr. Livinus Uzo Chime Ajana, the Applicant in person and Mr. Nura Manja, State Attorney for the Respondent is hereby certified as a true copy of the original. D. R^YTMO DEPUTY REGISTRAR COURT OF APPEAL 19