20171214 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: LUANDA. J.A.• MMILLA. J.A. And MKUYE. J.A.) > CRIMINAL APPLICATION NO. 7 OF 2013 MARTINE CHRISTIAN @ MSUGURI .............................................APPLICANT

VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Application for review from the decision of Court of Appeal of Tanzania at Mwanza) (Mbarouk. Bwana And Massati. JJJ.A.) Dated 12th day of March, 2013 in Criminal Appeal No. 209 of 2010

RULING OF THE COURT 1th & 15th December, 2017. MMILLA, J.A.: In this application, Martine Christian @ Msuguri (the applicant) is inviting the Court to review its judgment in Criminal Appeal No. 209 of 2010 dated 11.3.2013 (Hon. Mbarouk, Bwana, Massati, JJJA). The application is brought by way of notice of motion, and is based on the provisions of Rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the, __Rules). It is supported by an affidavit sworn by the applicant himself. 1 Briefly stated, the applicant was originally charged in the High Court at Bukoba with three counts of murder contrary to section 196 of the Penal Cod~ Cap. 16 of the Revised Edition, 2002. It was alleged that on 18.12.2003, he brutally killed three persons by shooting each one of them in the head. Those killed were Kyabatuku d/o Elizafani @ Jane, Kajenzi s/o Elizafani @ Charles and Tusiime d/o Elifas. The deceaseds' bodies were thrown into a nearby river, and the two persons who had accompanied the applicant were ordered to stir up the said river water so that the blood could mix up with water. The applicant was arrested two days later and was subsequently charged as it were. Although he had denied to have committed those offences, the trial court found him guilty on all the three , counts, convicted him and sentenced him to suffer death by hanging. He appealed to the Court, but his appeal was

dismissed. Undeterred, he has filed the present application for review. The notice of motion he filed on 9.5.2013 has raised one ground focused on sub - rule (1) (a) of Rule 66 of the Rules, complaining about an error(s) on the face of the record. The notice of motion carries an illustration that since it was his (applicant) defence that he was insane at the time he shot the deceased persons because he had consumed a lot of 2 harq_ drinks and smoked bhang, it was wrong for the Court to uphold conviction after expunging Exhibit P3 and the evidence of PWS Dr. Mbatia. When the application was called on for hearing, the applicant, who was also present, was represented by Mr. Geoffrey Kange, learned advocate, while Mr. Juma Sarige, learned Senior State Attorney, assisted by Ms Gisela Alex, learned State Attorney, represented the respondent Rep~blic. Mr. Kange submitted that the applicant's complaint is based on Rule 66 (1) (a) of the Rules which confers power to the Court to review its decision where a party may show that there was an error apparent on the face of the record which resulted into a miscarriage of justice. The learned advocate submitted that as far as the present application is ~oncerned, the error,._ which he referred to as being apparent on the face of the record is at page 10, first paragraph, 6th to 11th lines of the judgment of the Court, a portion which queried

the reliability on Exhibit P3, a medical report from Isanga Mental Institution, and generally the evidence of PWS Dr. Mbatia who had tendered that report before the trial court. During the hearing of the appeal, the Court upheld the contention that the said evidence was improperly received and relied upon because PWS was not the maker of 3 the report he tendered. It accordingly expunged that documentary evidence as well as the evidence of PWS. Mr. Kange stressed that it was wrong for the Court to uphold conviction after having expunged that piece of evidence, and that to have done so constituted an error apparent on the face of the record. Thus, he urged the Court to allow the application, and '•- set free the applicant. On the other hand, Mr. Sarige opposed the application. He submitted that the applicant did not show any error on the face of the record to entitle him to rely on the provisions of Rule 66 (1) (a) of the Rules. He contended that the Court did not slip into any error by upholding the conviction , __ after expunging Exhibit P3 and the evidence of PWS Dr. Mbatia because in upholding conviction, the Court took into consideration on the other available evidence, to wit, the evidence of PW1, PW2, PW3 and PW4. Besides, Mr. Sarige submitted, the ground raised herein amounts to an appeal in disguise as it indirectly seeks the Court to re-hear the appeal. He pressed the

Court to dismiss the application. In his brief rejoinder, Mr. Kange submitted that it was not enough for the Court to rely on the evidence of PW1, PW2, PW3 and PW4. He reiterated his prayer for the Court to allow the application. 4 We have carefully considered the ground raised in the notice of motion, the illustration made thereof, and the competing arguments of the coui:,_sel for the parties. We desire to begin by restating what we said in the case of John Kashindye v. Republic, Criminal Application No. 16 of 2014, CAT (unreported), that not every ground qualifies to be a ground for review, and that if each and every ground were to qualify to be a ground of review then no litigation would come to an end. This, we said, goes contrary to the public policy which demand that litigation must come to an end. We also wish to point out that as the law stands now, a party in an application for review is. required to state any of the grounds indicated under sub-rule (1), paragraphs (a) to (e) of the Rule. That Rule states that:- "66 (1) The Court may review its judgment or order, but no ,._ 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 miscarriage ofjustice; or 5 (b) a party was wrongly deprived of 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 judgment was procured illegally, or by fraud or perjury." As already pointed out, the applicant's lone ground in this application alleged that since it was his (applicant) defence that he was insane at the time he shot the deceased persons because he had consumed a lot of hard drinks and smoked bhang, the Court was wrong to uphold conviction after expunging Exhibit P3 and the evidence of PWS Dr. Mbatia. As pointed out, Mr. Kange submitted that to have done so constituted an error apparent on the face of the record. We have soberly considered the ground under consideration. We hurry to. agree with Mr. Sarige that it does not qualify to be "an error apparent on the face of the record." We will explain. Before proceeding with the discussion, we pose the question: What does the phase "an error on the face of the record mean? 6 An attempt to define the phrase "an error on the face of record" was made in the case of Chandrakant loshubhai Patel v. Republic [2004] T.L.R. 218, in which the reasoning in MULLA 14th Edition pp. 2335-36 was adopted. It was stated therein that:- ,__ '~ .. an error apparent on the face of the record must be such as can be seen by one who writes 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... " See also the case of Nyamogo and Nyamogo Advocates v. Moses Kip~olum Kogo [2001] 1 EA 173. Guided by the above, we find it inescapable to point out that the ground raised in this application is not an error apparent on the face of the record because such an "error" requires to be established by a long drawn process of reasoning on points which are conceivably pregnant with two opinions, thus making it hardly an error apparent on the face of the recq_~d. This is because while Mr. Kange says the Court ought not to have proceeded to uphold the conviction, Mr. Sarige says the Court rightly found 7 that there was other cogent evidence from PWl, PW2, PW3, and PW4 to make the conviction stand. Undeniably, these are two opinions apart. Besides, the ground raised touches on the aspect of re-assessment of evidence in order to derive the alleged error. As often warned, that would amount to re-opening the appeal and hear it again. That wi.11 be wrong - See the cases of Lakhamshi Brothers Ltd v. Raja Sons, (1966) E.A 313 and lames @ Shedrack Mkungilwa and another v. Republic, Crin,Jnal Application No. 1 of 2012 CAT (unreported). In the latter case of lames @ Shedrack Mkungilwa and another v. Republic (supra), the Court emphasized that:- ''It is settled law that a review of the Judgment of the highest Court of the land should be an exception.

The review Jurisdiction should be exercised in the rarest of cases and in the most deserving cases ,._ which meet the specific benchmarks stipulated in Rule 66 (1). A review application, therefore, should not be lightly entertained when it is obvious that what is being sought therein is a disguised re-hearing of the already determined ,, appeaI ... 8 • For reasons we have assigned, we agree with Mr. Sarige that this application has no merit. We accordingly dismiss it. DATED at MWANZA this 14th day of December, 2017. B. M. LUANDA

JUSTICE OF APPEAL B. M. MMILLA

JUSTICE OF APPEAL R. K. MKUYE

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

COURT OF APPEAL 9