masamba musiba musiba masai masamba vs republic 2023 tzca 17514 10 august 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM I CORAM: NDIKA. J.A., SEHEL, 3.A. And KHAMIS, J.A) CRIMINAL APPLICATION NO. 33/01 OF 2021 MASAMBA MUSIBA @ MUSIBA MASAI MASAMBA..................APPLICANT VERSUS THE REPUBLIC....,....................... ............................. .......RESPONDENT (Application for Review of the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) (Ndika. Kwariko. Sehel, JJA) dated the 24th day of June 2021 in Criminal Appeal No. 138 of 2019 RULING OF THE COURT 18th July & 10th August, 2023 KHAMIS. J.A.: In the High Court of Tanzania at Dar es Salaam, Masamba Musiba @ Musiba Masai Masamba was arraigned for the offence of murder of one Bertha Mwarabu, a fellow student at the University of Dar es Salaam, contrary to Section 196 of the Penal Code, Cap 16, R.E 2002 and on conviction, was sentenced to a mandatory death penalty. His appeal to this Court bumped into a deadlock as the Court upheld the conviction on 28th June 2021, hence the present proceedings. This application was filed on 17th August 2021 seeking an order for review of the Judgment of this Court in Criminal Appeal No. 138 of 2019 which dismissed an appeal opposed to Judgment of the High Court of Tanzania at Dar es Salaam in Criminal Sessions Case No. 126 of 2015. The application was preferred by notice of motion predicated under Section 4(4) of the Appellate Jurisdiction Act, Cap 141, R.E 2019 and Rule 66(l)(a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the "Rules"). A personal affidavit of Masamba Musiba @ Musiba Masai Masamba, supported the application. The grounds of review are expressly stated in the notice of motion, thus; "1. The decision o f the Court was based on a manifest error in the face o f record resulting in the miscarriage o fjustice to the applicant as follows: 2 1.1 That the Court has misapprehended the substance o f evidence o f PW2 and PW4 and came into wrong conclusion that the applicant was well known to them because, he was their college mate and was residing in the same Block Cf Mabibo Hostel. The fact which does not feature in their evidence on record. 1.2 That the Court failed to consider the guiding principles on nature value and application o f identification o f a person not well known to identifying witnesses, hence totally failed to find that identification made by PW 4 and PW 2 required identification parade. 1.3 That the evidence o f PW 3 who identified body o f the deceased two days after the incident which was relied upon a basis o f proof o f death is lacking and valueless in absence o f neither post mortem 3 examination report nor evidence o f a doctor who performed an autopsy. 2. The applicant was wrongly deprived an opportunity to be heard in fuii as: 2.1 That ail grounds o f appeal which the applicant raised in a supplementary memorandum o f appeal were not considered by the Court. 2.2 That the list o f authorities which the applicant reiied upon in support o f the grounds o f appeal were disregarded by the Court. 2.3 That despite that, the applicant's advocate urged the Court to consider the grounds o f appeal raised by the applicant in his Memorandum o f Appeal, the Court condensed them into two grounds and allowed the respondent to make submissions on them without applicant being afforded with an opportunity to make any submission on the said grounds o f appeal. 4 2.4 That the Court failed to consider the applicant's plea o f not guilty against the charge as a general and nature o f the key dispute to whole prosecution evidence and the Court failed to consider the cross examination o f PW2 and PW4 who contradicted their evidence." In the affidavit in support of the notice of motion, the applicant averred that in Criminal Appeal No. 138 of 2019, he presented a Memorandum of Appeal containing fifteen (15) grounds of appeal followed by two Supplementary Memoranda of Appeal accommodating ten (10) and eight (8) grounds of appeal respectively, which were all unjustifiably disregarded by the Court. He deposed that the Court also turned a blind eye to his list of authorities such that it failed to effectively deal with or determine some important issues in the case. He alluded that the Court reached into wrong conclusion regarding his identification by PW2 and PW4. The applicant denoted that contrary to the Court's findings, the two 5 witnesses did not say that he was well known to them owing to being a college mate and resident of Block C at Mabibo Hostel. Further, the applicant deposed that the impugned Judgment was based on a manifest error on the face of record as the evidence of identification relied upon to convict him, lacked value in absence of the identification parade. In further efforts to display a manifest error on the face of records, the applicant averred that PW 3's testimony which was acted upon to prove death of the deceased was trifling on account of the missing postmortem report and testimony of a medical doctor who conducted an autopsy. On the right to fair hearing, the applicant generally deposed, without elaboration, that he was deprived of an opportunity to be heard. The application was strenuously resisted by the Republic through the Affidavit in Reply sworn by Monica Ndakidemi, learned State Attorney. She deposed that the impugned Judgment of the Court in Criminal Appeal No. 138 of 2019, indicates that all grounds of 6 appeal raised by the applicant were heard and conclusively determined. Ms. Ndakidemi averred that the applicant failed to substantiate an alleged manifest error on the face of record allegedly because the elements singled out as grounds of review were actually the grounds of appeal that were earlier on discussed and conclusively disposed of at the appellate stage. When the application was set for hearing before us, the applicant was unrepresented and fended for himself. The Republic was ably represented by Ms. Monica Ndakidemi assisted by Ms. Salome Matunga, learned State Attorneys. Submitting in support of the notice of motion, the applicant adopted his earlier lodged written submissions and sought leave of the Court to introduce additional grounds of review. Having been sanctioned, he listed down the following additional grounds: 1. That the Court misapprehended the substance of PW 4's evidence and came into wrong conclusion that she frequently used to see him with the deceased at the hostel compound 7 and most of the time in company of the deceased and therefore recognized him, a fact which does not feature in the evidence on record. 2. The Court misapprehended the evidence of PW2 and wrongly stated that PW2 found the applicant with knife, clothes and certificate, allegations that did not feature in the records. 3. The applicant was deprived of the opportunity to be heard. Al! prosecution witnesses: PW1, PW2, PW3, PW4, PW5 and the accused's statements were read during committal and admitted at the trial which contradicted the oral accounts (evidence) but were not considered by the Court. 4. The impugned Judgment was procured illegally, by fraud or perjury. It was drawn from a case that was characterized by procedural irregularities. 5. That PW 3 illegally adduced her evidence to prove death of the deceased. 6. That the Supplementary Record of Appeal were not heard by the Court. 8 7. That there was neither postmortem nor sketch plan and the accused was not interrogated 8. Time was not considered in identification by PW2 and PW4. 9. That evidence of PW 3 who identified body of the deceased two days after, is short of a postmortem report or evidence of a medical doctor who examined the body. 10. That the Court wrongfully presented its findings revealing that the applicant was put under arrest before the incident was committed. On the other hand, Ms. Ndakidemi battled the application contending that it failed to meet the legal threshold under Rule 66 (1) (a) - (e) of the Rules on a rationale that: the applicant was sufficiently accorded the right to be heard as reflected in various pages of the decision including at page 3, 24 and 28 thereof. The learned State Attorney urged us to ignore an allegation that the application manifested errors material on face of the records to justify a review. She asserted that the lumped allegations were a repetition of the grounds of appeal hence an academic exercise. 9 In his rejoinder, Masamba Musiba @ Musiba Masai Masamba, drew our attention to page 6, paragraph 3 of the impugned Judgment and contended that his advocate did not abandon the 42 grounds of appeal as wrongly assumed by the Court resulting to a miscarriage of justice. Further, the applicant reiterated his earlier submissions and asseverated the need for a just, fair and conclusive Judgment on review that would take care of his allegations on the impugned Judgment to find him wrongly convicted and proceed to acquit him. On perusal of the application, the affidavits and parties' rival submissions, the issue for determination is whether the application discloses sufficient grounds for the Court to review its own Judgment. As earlier on stated, the applicant relied on Section 4(4) of the Appellate Jurisdiction Act and Rule 66(1) (a) and (b) of the Rules to move the Court for an order of review. These are proper and correct provisions of law. Whereas the former confers capacity to this Court to review its own decisions, the 10 latter sets out grounds or basis upon which the power of review may be exercised. Adjudging from the applicant's grounds of review and the submissions on record, the applicant advanced two main grounds for review: an error on the face of record and denial of the right to be heard. In the course of his submissions, he abandoned the second ground of appeal related to the alleged denial of the right to be heard. In the circumstances, we will not stretch our discussion on that aspect. A manifest error apparent on the face of the record was defined to mean an error 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 which may conceivably be two opinions (See: MULLA, INDIAN CIVIL PROCEDURE CODE, 14Th EDITION, at pages 2335 - 36 as cited in CHANDRAKANT JOSHUBHAI PATEL V R [2004] TLR 218). In PATRICK SANGA V REPUBLIC, Criminal Appeal No. 8 of 2011 (unreported), this Court pointed out that the Court's jurisdiction li on review is not absolute but rather limited to specific circumstances as covered in the Rules. To be precise, the Court restated the law that: "No order o f review can be granted by the Court outside the five grounds stipulated therein. The review process should never be allowed to be used as an appeal in disguise." In RIZALI RAJABU v REPUBLIC, Criminal Application No. 4 of 2011 (unreported), this Court made a distinction between a judgmental error and reviewable error, thus: "First, we wish to point out that the purpose o f review is to re-examine the judgment with a view to amending or correcting an error which had been inadvertently committed which if it is not reconsidered wifi resuit into a miscarriage o f justice. We are alive to a well known principle that a review is by no means an appeal in disguise. To put it differently, in a review the Court should not sit on appeal against its own judgment in the same proceedings. We are also mindful o f the fact that as a matter o f public policy litigation must come to an end hence the Latin Maxim - Interested reipubiicae ut finis iitium. ..........." In SATYANARAYAN LAXMINARAYAN HEGDE v MALIKARJUN BHAVANAPPA TIRUMULE AIR 1960 SC 137, the Supreme Court of India discussed a similar point of law and held that: "An error which has to be established by a long drawn process o f reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face o f the record. Where an alleged error is far from self evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ o f certiorari according to the rule governing the powers o f the Superior Court to issue such a w rit" 13 In LILIAN JESUS FORTES v REPUBLIC, Criminal Application No. 77/01 of 2020 (unreported), this Court observed at page 15 of the typed Ruling that issues concerning analysis of evidence are not subject of review. In MAULID JUMA BAKARI @ DAMU MBAYA v REPUBLIC, Criminal Application No. 63/01 of 2020 this Court addressed a similar issue and pin pointed out that: "We need to emphasize here that the purpose o f review is to address irregularities o f a decision which have caused injustice to a party. Therefore, it is not an appeal avenue open to the unsatisfied party with the decision o f the Court." In GALAXY ENERGY INTERNATIONAL LTD v EUROBUNKER SPA (2001) 2 LLOYD'S REP 725, the Queens Bench Division of the England & Wales, pointed out the test for an error on face of the record to be whether the would be error is obvious to a reader with the knowledge that could be expected among those to whom the document is directed. 14 Applying the above legal principles to the application at hand, we are unable to swallow the applicant's misguided assertions that there is a manifest error on the face of the record. We have passionately reviewed each of the grounds of review as contained in the original list outlined in the notice of motion as well as the additional grounds presented at the time of hearing. We also scrutinized the impugned Judgment, and found out that the Court deliberated on all grounds of review as raised by the applicant, which by then, featured as grounds of appeal, but found no merits therein. Under Paras. 1.1, 1.2 and 2.4 of the notice of motion and in the supplementary grounds of review, the applicant faulted the Court for failure to properly evaluate the evidence on record regarding his identification by PW 2 and PW 4. However, at pages 2, 3, 4, 5, 12, 13, 17, 18, 21, 22, 23 and 24 of the typed impugned Judgment, we made a thorough analysis on the evidence of identification particularly the one relating to PW 2 and PW 4. At page 23 of the impugned Judgment, we made a finding that: "Having heard the contending arguments from both sides and on our re-evaiuation o f the evidence we find that this is a straightforward issue as the appellant was well known to both identifying witnesses, PW 2 and Pw 4. Both witnesses said that the appellant was their college mate and he was residing in the same Block C at Mabibo Hostel. Further, PW 4 said that she frequently used to see him with the deceased as they were friends. The appellant himself does not dispute it because he said in his evidence in chief that the deceased was his friend. As such, the identification o f the appellant was more o f the recognition than identification by the stranger." At paragraph 1.3 of the notice of motion and in the Supplementary Grounds of Review, the applicant contended that PW 3's evidence was not backed up by a post mortem examination report and oral testimony of a medical doctor. Nevertheless, this issue was adequately covered in the impugned Judgement at page 25 - 26, thus: "... In this appeal we noted that the appellant disputed all the facts read over to 16 him during the preliminary hearing. We further noted that the prosecution intended to tender the post mortem examination report (PMER) o f the deceased and to call the doctor. However, the doctor was not paraded as a witness and the PMER was not tendered in evidence. That apart,■ as rightly submitted by the learned Senior State Attorney and correctly found and held by the presiding Judge that PW 3 established and proved that the murder took place and the deceased died from unnatural and violent cause since her body was found with wounds and full o f blood. We are therefore like the presiding Judge satisfied that the prosecution proved its case beyond reasonable doubt against the appellant." The applicant equally challenged the Court's analysis and its findings generally regarding the evidence of PW 1, PW 2, PW 3, PW 4 and PW 5. According to him, there are contradictions that ought to have been attended to in his favour. He also faulted the Court for failure to address itself on the identification parade. 17 Be that as it may, in pages 4, 5, 17, 21, 22, 23, 24 and 25 of the impugned decision, the Court referred to the disputed evidence of PW 1, PW 2,. PW 3, PW 4 and PW 5 and concluded that: "In the instant appeal, given the surrounding circumstances o f the appellant's recognition and his arrest, we do not agree with Mr. Magafu that it was necessary for the prosecution to conduct an identification parade. The identification parade would have been proper if the appellant was a stranger to the identifying witnesses. Since the identification o f the appellant was through recognition which is more assuring and more reliable,, we are satisfied that the appellant was positively identified by PW 4 and PW 2." There was aiso a complaint regarding the Court's decision to paraphrase the applicant's grounds of appeal contained in the Memorandum of Appeal and two Supplementary Memoranda of Appeal. In our view, this insinuation should not persevere because the impugned Judgment clearly pointed out what was presented by the 18 applicant and highlighted that in totality, 42 grounds of appeal were advanced and determined. This discussion is reflected in page 2, first paragraph of the typed Judgment, thus: "He initially filed a fifteen (15) point memorandum o f appeal followed by two sets o f supplementaty memoranda o f appeal. The two sets had a total o f eighteen (18) grounds o f appeal. Further, in terms o f Rule 72 (1) o f the Tanzania Court o f Appeal Rules, 2009 as amended (henceforth the "Rules") Mr. Majura Magafu, learned advocate who was assigned the dock brief filed another set o f a supplementary memorandum of appeal comprised o f nine grounds o f appeal. In totality, the appellant advanced forty two (42) grounds o f appeal. " The extract above shown paints a clear picture that the Court considered all the grounds of appeal and analyzed the entire evidence on record. The issues under discussion are also difficult questions of law and facts which were open to competing arguments. 19 In view of the analysis and determination of the issues discussed herein above, the conclusion becomes irresistible that this application fails as such issues fell short of the criteria for manifest errors of law on face of the record. The upshot is that the Court's Judgment in Criminal Appeal No. 138 of 2019 is not disturbed, rather left intact. In the same manner, this application is hereby dismissed for want of merits. DATED at DAR ES SALAAM this 9th day of August, 2023. G. A. M NDIKA JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The ruling delivered this 10th day of August, 2023 in the presence of the applicant in person, vide video link from Ukonga Prison and Mr. Cathbert Mbilingi, State Attorney for the Respondent, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 20