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l,-Jho-Jt \s nri-Q_~ b · • . " ~ l nr< °'"-r!>1W"' ~ DY\1 IN THE COURT OF APPEAL OF TANZANIA ~ th-~ ~:; \~ · AT DAR ES. SALAAM r f-t_4){ ce \I (CORAM: KIMARO, J.A., MBAROUK,J.A., And MASSATI,J.A.) CRIMINAL APPLICATION NO. 5 OF 2010 1. NGUZA VIKINGS@ BABU SEYA } 2. JOHNSON NGUZA@ PAPII KOCHA . •.•••.•••••.••••••.••••'·······~··APPUCANTS VERSUS THE REPUBLIC •••••••••••••••••••••••••• ■ 15 ••••••••••••••• 11. ■ l'l•······••D ■ ll ■ II ■■ a ............. RIES PON DENT (An application for Review of the judgment of the Court .of Appeal of Tanzania Criminal Appeal No. 56 of 2005 _(Kimaro, Mbaroµk, Massati, JJJA. ) . ' rd dated 3 day of February, 2010 and Delivered on 11th day of Felnuary ,2QJ_Q . •■ I ■ 11 ■■■ II I 11 'll ft; Jo G 11 RULING Of THE COURT ·This is an appBcatlon · by way of a Notice of i',1otion dated 9th Ap1·ii . February, 2010, and delivered on l 1th February, 201 O! in Crirn1n3i ;Jppr::ai 10 counts of unnatural offence· in the Court of the Resident Magistrate at -~ Kisutu, Diir es s~laa~. Their convicfions were confirmed by the High Court,. which dismissed their\appeal on 2ih January, 2005. They lodged a second appeal to this Court. In its judgment \ow under review, the Couit dismissed the appeal against the 1st applicant\in respect of the ih and 1th counts, and against . \ ' ' both, in respect of 10 land 18th counts and allowed it in ·the remaining th counts. · The :tourt also ionfirmed the order of compensation of shillings two ~illi~o· to be paid\ by each appellant to each of the _victims: Subs~gu,~ntly, as indicated earlier by the ~otice of Motion her~in, the ,. . . <1::;, . ' ' ' \ : . ' . ..~P~litants apply to this Court to review the said decision. .. . . . • ~t is .~~w settled that \his. Court has jurisdiction to re~ie.~ : ;.. ~wn . I decision in any given case. Eyen long b~fore the codification of ~ule 6? in ' '... . ' \ ' ' .' : .. ' ' the Court of Appeal Rules 2009, (the Rules) the Court recognized that as a court of last resort, it has i~herent r~sidual jurisdiction in. ~;~eptiona; • circumstances,. to reopen an a~peal or application which it had already ' \ I determined in order to avoid real injustice. , This was necessary to achieve the dual objectives of an apJllate court; namely, to corr~ct wrong \ decisions so as to ensure justicJ between the litigants involved and to \ 2 ,/i . . ~ ensure public confidence in the administration of justic~, not only by· remedying wrong decisions, but also by clarifying and developing the law . . . and setting precedents. in that way, the Court would enforce its rules of practice, suppress any abuses and defeat any attempted thwarting of its processes. Such jurisdiction is necessary to ensure that a manifest injustice does . not go uncorrected. (See CHANDRAKANT JOSHIBHAI PATEL v R (2004) TLR. 218. · The grounds, although then not exhaustive, on which this Court could exercise its review jurisdiction were first out set out in TRANSPORT EQUIPMENT ~TD v DEYRAM P.VALAMBHIA (1998) TLR.89, followed by TANZANIA TRANSCONTINENTAL CO lTD v DESIGN PARTNERSHIP LTD (1999) TLR 258, and concretized in CHANDRA.KANT JOSHUBHAI PATEL V REPUBLIC (2004), TLR.2.18, :,~-: Those were then codified and now explicitly set. out in Rule 66 (1) of the . Rules,, which reads as follows:- " 66 (1) The· Court may review its-judgment or orde,; but no application for review shall be entertained except on · the following grounds:- 3 •L • (a) the decision was based on a manifest error on the face of the record, resulting in tfle miscarriage ofjustice/ or (b) a party was wrongly .deprived of an opportunity to be heard,· (c) the court's decision.is a nullity, or (d) the judgment was procured i//egallr✓ or by fraud and perjury'~ By the wording of this Rule, the list of grounds of review is no more inexhaustive but confined to only those four. According to· the Notice of Motion, the present applicati9n is predicated upon Rule 66(1)(a), which is that, the said judgment .~e . . reviewed and set aside on the ground that the decision was_ bas~d on a ' . . ' ... :;~ manifest error on the face of the record resulting in the miscarriage of ~ • • : ,. f I ·• ..... :'"",. . .• , justi_ce. .. , At the . . hearing, . the. application was prosecuted ' '. . .... by . Mr. . Mabere . . . ~ ~ ' ;~.' {" Marando, learned cou~sel for the applicants. It took nearly two _hours of oral presentation and 11 pages of written .submission, for Mr. Marando to demonstrate th~t there. was an erro~ 4 ,. . . ~ pppar~nt on the face of the record in the judgment of the Court, in the following areas. Firstly, that it was erroneous . . for the Court to have held that non compliance with the procedure for conducting a voire dire examination reduced such testimony to unsworn evidence. For this,. he had to enlist the aid of section 53 of the Interpretation of Laws Act (Capl RE 2002); and the decision of this Court in another case of SUNDAY . . JUMA v R, Criminal Appeal No 407 of 2007 (unreported) and criticized the· impugned· decision for relying on an earlier decision of this Court in HERMAN HENJEWELE v R, (Criminal Appeal No. 164 of 2005 (unreported). Secondly, that this Court erroneously disagreed with him in the judgment for refusing to draw adverse inference for the prosecution's failure to call certain important witnesses. For this, he had to engage into a detailed analysis of section 122 of the Evidence· Act, at1d refer· to ::/ SARKAR ON EVIDENCE, CD FIELD'S LAW OF !EVIDENCE, (lih ed.) and .BUKENYA AND OTHIERS v- UGANDA (1972) EJ-\.549. He also took us through several pages of the record of proceedings to identify who those "important witnesses" could be, Third~y, the learned counsel submitted that the Court wrongly ignored the strong defence evidence and .relied only on the ci·edibility and strength of the prosecution evidence. He 5 ....... also referred to us the decisions of DAMIANUS ORINDA s/o OTIENO y - R (1957) EA 383, MACHARIA v R, EA Criminal Appeal No. 208 of 1975, . as well as a book PROCEDURES IN CRIMINAL LAW IN KENYA by MOMANYI BWONWONG'A. He then took us through the testimonies of two defence witnesses which in.his opinion, should not have been ignored. In his view on this point, failure to consider the evidence of the defence witnesses was a grave error on the face of the record. He thus prayed that the application be allowed. The respondent/Republic resisted the application. It was heavily · represented by Mr. Jackson Bulashi, learned_ Principal State Attorney,· Mr: Angaza. Mwipopo, Senior State Attorney, Ms. Immaculata Banzi,, Senior State Attorney,· Mr. Joseph Pande, Senior State Attorney and Mr. •Apimaki Mabruk, · learned State Attorney. Mr. Bulashi and Mr. Pande jointly submitted as follows, First, to establish a case ·under Rule 66(1)(a), t~e applicant·hasto establish that, there was/is:- (i) . an error, (ii) .. the error must be manifest on the face,of the :record_; and it 6 . " (iii) _must have resulted in the miscarriage of justice. · From the applicant's submission, none of these tests were met, they argt:Jed. The errors pointed out were neither manifest nor apparent on the face of the retard. Secondly, all_ the arguments were not only suitable but already taken up in the appeal and decided. To reintroduce them now would just be rearguing the appeal in disguise .. Litigation must come to an _end. Thirdly, there was a clear distinction between an error of law and a decision that is erroneous in law. The latter is a good ground for appeal . but not review. Fourthly, learned counse.1 submitted that no judgment can attain perfection. What is important is the attainment of justice. Fifthly, they argued that if there are conflicting decisions of this Court, the . applicants should have sought the convention of a full. bench of. the Court to resolve· the conflicts. Lastly, the learned counsel· argued that the applicants have not shown, how, if there were any errors, they· resulted .in the miscarriage of justice. To drive their points home counsel relied on a number of decisions of this Court . including but not limited to, . CHANDRA.KANT JOSHUBHAI PATEL v R (2004), TlR. 218, TANGANYIKA LAND AGIENCY LIMITED AND 7 OTHER.S v MONOGAR · - LAL AGGARWAL, Civil Application No 17 of 2008 ( unreported) 7 ' TRANSPORT EQUIPMENT LIMITED v DEVRAM P. VAL4MBHIA (1998) TLR 89, MASHAKA HENRY v R Criminal Application No. 2 of 2012 (unreported) and THOBIAS MANG'ERA MANGO AND ANOTHER V.R REPUBLIC. Criminal Application no 8 of 2010 ( both unr~ported). In his rejoinder submission, Mr. Marando submitted that it was the , law that the proceedings of a voire dire examination must be recorded. Failure by the Court to so acknowledge was an error apparent on the face of the record. That a court should also draw .an adverse inference if certain witnesses were not called was also settled law, and it was an error apparent on the face of the record. It was also an error apparent on-the face ·of the record to attribute some evidence to PW13 on which -the ' ~ .' witness did not testify .. As. to miscarriage. of justice, th~ learned .c9unsel submitted that if not for the error that the Court comr:nitted on.Jhe la~ regarding voire dire examination of the victims, the applicants would nqt .be languishing· in life imprisonment. He thus reiterated his prayer that the applicati.on be allowed. 8 . The issue before us is w~ether the circumstances enumerated by the applicants in their Notice of Motion and their written submission show a manifest error apparent on the fa'ce of the record. And if so ·whether the said error resulted in the miscarriage of justice? There is no dispute as to what constitutes a manifest error apparent on the face of the record. It has to be such an error that is an obvious and patent mistake and not something which can be established by a long . ·, drawn process of reasoning on points which there may conceivably be two opinions. (See CHANDRAKANT PATEL, and TANGANYIKA LAND AGENCEY LIMITED (supra) ). On the other hand there is a "miscarriage of· justice" if the error leads to a grossly unfair outcome in a judicial proceeding, as when a defendant is convicted despite a lack of evidence-·on an essential element of the crime. (See BLACK'S LAW DICTIOf~ARY) 8th ed. p. 1019. · · There is no hard and fast rule . . that can be laid down to declare or · point out which or what error is apparent on_ the face of the record. The _exercise of this power of review will depend upon the peculiar facts of each 9 case. (See SARKAR ON CIVIL PROCEDURE CODE, 10th ad. Vol. 2 at p. • 2291). Judicial experience has shown that there are not as many instances of this Court reviewing its decisions on the ground of manifest error on the face of the record, (the first category) as there are of it refusing to so ' hold (the second category). In CHADRAKANT PATEL'S case, the Court acknowledged that what it did in FELIX BWOGI v REGISTRAR OF BUILDINGS Civil Appeal No. 26 of 1986 (unreported) was in fact a review of its judgment although it did so under Rule 40(1) of the Court of Appeal Rules. 1979. In that case a document withdrawn at the trial before the Hlgh Court -had somehow found its way into the Record of App~al and the . judgment of· the Court was based on that document. We would easily · . " . . classify° such· wrongful inclusion as a manifest• error on the 'face ·of the · record:r And ·so, by analogy, -we would treat but. witho"ut deciding fo-r 'each· case,. air such wrongful or inadvertent inclusions or orriissioris of documerffs in tlie records -of appeal as such manifest errors, reviewable.. under>this category· if they result into a miscarriage of justice. Other instanceshinder• this category would include failure to consider the law of limitation,···or: where a judgment is based on a non existent or repealed law. But on the 10 .. other hand, the Court ·has in many instances refused to treat as manifest errors on the face of the record (second category) in the following cases:- (a) If the error is not self evident and has to be detected by the process of reasoning; (b) If there are two possible views regarding the interpretation or application of the law; (c) Any ground of appeal; ( d) Any erroneous decision; , (e) · A mere error or wrong view; and · (f) · A different view on a question of law or an erroneous view on a . . debatable point or a wrong exposition or wrong application of the law. (See . CHANDRAKANT PATEL v R, TANGANYIKA LAND AGENCY LIMITED. AND ·7 OTHERS v MONOGAR LAL AGGARWAL, TRANSPORT EQUIPMENT. v DEVRAM P. VAlAMBHlA, MJ1iSliAKA HENRY. v .R, PIUS SANGAL:i .AND OTHERS TANZANIA PORTLAND CEMENT ·CO. LIMITED (supra). Again in this category the list _is not exhaustive. 11 What is the situation in the present case? Applying the foregoinq .. principles, can it be said that, the present application has passed the threshold for leave for ·review of this Court's judgment dated 3rd February, 2010? The answer must lie first and- foremost on the general grounds upon which the application is based. For this, it is now necessary to take a ' . . i closer look at the Notice of Motion and the counsel's submission. The Notice of Motion is supported by the affidavit of. one GABRIEL SIMON MNYELE. · - The main thrust of the application is contained iri paragraphs 3 and 4 of the said affidavit which state as follows: 3. "There are· established principles of law which the decision has completely oVerturned, creating an uncertainly in , the/aw/ that is to say:- . •' . . There is a well established principle . l.· · of lat11 that the Court will draw adverse inference against a party who deliberately declines to· call material witnesses or · produce .material evidence. By holding that 12 - ... the prosecution .has a discretion to call any witness/ the Court has developed a new precedent against · the well established law. (ii) . The Court of Appeal made a finding that the case of Sunday Juma Vs Republic, Criminal Appeal no 402 of 2007 Dar es salaam Registry, .was decided per incuriam therefore discarding that case as an authority on the interpretation of sect.ion 127(2). - and 127(7) of the Evidence Act~ Cap 6-RE 2002. Henct: that very itnportant (sic) will no longer be part of the law of this• country. (iii) The long established and statut01y principle that even the defence evidence will be relied on if it has J.3 . - the effect of fully answering the • prosecution case has been discarded by the Judgment of the Court of Appeal . 4. If this Judgment of the Court of Appeal is left to stand as a precedent and followed it will cause a ·. lot of injustice'~ As' hinted above; when the application came before us, Mr. Marando, learned · counsel · in . a· long· drawn process of legal reasoning, severely · criticized. the judgment, for. ignoring sections 122 and 127(2) of the Evidence Act, and section 53 of the Interpretation of Laws Act; as well :as the decision of SUNDAY JUMA v R (supra) on the interpretati~:m of s. 127(2) ofthe:Evidence Act . . We wish to point out two things about this application. in the first place, the decision of the Court · was made after all the parties had .. presented the_i_r .submissions. The app!icants were therefore fully heard. ·' Secondly, on a plain reading of the Notice of Motion, the . supporting . . ~ affidavit, and the submissions (both written and oral) by the learned 14 ,. couns~I, it is clear to us that the applicants are unhappy and dissatisfied with the decision o f ~ - Court and are seeking to re-open and re-examine the substantive merits of their appeal. This is so because the matters stated in paragraph 3 of the supporti_ng affidavit, were also raised and argued as grounds number 9, 12, 17,18 and 19 .of their appeal. the Court considered and decided these grounds on pages 10- 19, 19 - 25, 27 to 32. It may perhaps be appropriate to revisit them here. The first ground in paragraph 3 (i) of the affidavit complains that the judgment set a new precedent on the principle of adverse inference. This was the subject of ·ground, number 19 of the grounds of appeal. The. Court decided t~at issue on page 26 of its judgment in the following words:-· 11 . Regarding the failure by the prosecution tCrj surnrnon important witnesses to ·corroborate the evidence of lhe ch11d witnesses, we . rnust say that thlc; ground Jacks merit because the question of ,.,vhid1 witness should be summoned to prove the prosecution case rests 01, the· prosecution. Moreover it is not the nun1ber of witnes~r::e.', 15 ,. which matters but rather it is the credibility of the With respect, by that decision, the Court did not create any new :p,recedent as the applicants allege. On the contrary what the applicants propose is not the law. The law is that section 122 of the Evidence Act is only permissive, as the use of the word "may" appearing in the provision suggests.and not imperative. So, a court does not have to draw. adverse inference in every case even if in its opinion the· prosecution case is self sufficient. The application of the provision depends on the circumstances· · of-each case. (See SARKAR ON EVIDENCE 15th ed. . at p 1640; . AZIZ ABDALAH -v R (1991) .TLR.71 •at p.81. But in any case, it has been.- held · th~t' failure or omission by an appell~te court to draw an adverse inference, ·is not a good ground for-review,, though it may be a good ground- of ,appeal ifthere-was another chance. (See CHADRAKANT PATEL'S case supra): The ground in paragraph 3(ii) of the affidavit complains that the Court discarded ·suNDAY JUMA's case (supra) as authority, for the interpretation ofse~ion 127(2) ·and 127(7) of t~e Evidence Act. In·our·... : . , . . 16 ,.. ~ . •' 'it,· "view~ that is encompassed in ground number. 9 of the grounds of app·eal which was to the effect that, the High Court erred in ngt finding that the non conducting of voire dire as by law required, did not vitiate the proceedings. The Court determined this point on page 16. After agreeing that it was im,portant to comply with section 127(2) of the Evidence Act, the Court went on to pronounce that it could not follow SUNDAY JUMA' because it was decided per incuriarri, as it did not give reasons for departing. from the previous decisions of the Court. Instead it followed the principles · previously ·laid · in HERMAN HENJEWELE v R (op cit). In suth a situation, the question is not which of the decisions is correct, because both panels of this Court have concurrent jurisdiction.. But we· agree that there. are now two· different opinions on the subject But the difference in opi~ion does not constitute a manifest error apparent on the face of the record .. As Mr. Pande has submitted, the conflict could only be resolved by a full bench of• the Court; not by way of review on the ground of error apparent on the face of the record. The third complaint in paragraph 3 (iii) of the .affidavit _is th~t trie defence case . vyas. not fully considered. This was the subject . . .of. qrounds ·. 17 and 18 of the grounds of appeal. The Court dealt with this complaint 17 ~: ·; on page ·2s of the judgment by _agreeing with the appellants ·that the :: burden of proof in criminal cases was always on the· prosecution and not on the defence, and that discrepancies and contradictions in the defence evidence may only assist in assessing the whole evidence to ascertain whether the prosecution discharged its burden of proof; but weaknesses in the defence case cannot be the basis for the convicti_on of the accused. Mr. Marando also made a scathing criticism on the Court's remarks on the evidence of PW13~ in connection with it providing corroborative evidence to the prosecution case. . The criticism may or may not be justified, but with respect, it was wrongly taken in the submission. This is because it was neither raised as a ground in the notice of motion, nor taken in the supporting affidavit - The Court cannot decide on a matter which ·is not part .of a party's notice of motion, as that would amount to taking the opponent off guard. ~ ' . . . ' In our view therefore, this application is, in ·actual fact, an attempt. to \· . , relitigate the substantive merits of the appeal and to re-open and re- examine a final decision that has already been given by this Court on 11th 18