paul dioniz vs republic 2023 tzca 17436 18 july 2023

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM rCORAM: MKUYE. J.A.. MWANDAMBO. J.A. And MAIGE. J.A.l CRIMINAL APPLICATION NO. 86/1 OF 2020 PAUL DIONIZ.................................................................... .....................APPLICANT

VERSUS THE REPUBLIC ................................................................ .................RESPONDENT (Application for review against the decision of the Court of Appeal of Tanzania at Dar es Salaam) (Mkuve. Wambali and Kitusi. 3JA ^ dated the 31st day of May, 2018 in (H O Criminal Appeal No. 226 of 2017

RULING OF THE COURT 10th & 18th July, 2023 MAIGE. J.A.: The applicant was convicted by the District Court of Kinondoni of the offence of rape contrary to section 130(1) (2) (e) and 131(1) of the Penal Code. He was as a result, sentenced to thirty years imprisonment. Both the conviction and sentence remained as it was despite the applicant's first appeal to the High Court of Tanzania at Dar Es Salaam. Once again aggrieved, the applicant appealed to the Court. As per page 4 of the judgment of the Court, the grounds of appeal were as follows: 1. That, the 1st appellate judge sustained the appellant's conviction on the basis o f defective charge.

2. That, the 1st appellate judge failed to realize that there was a discrepancy between PW1 and PW 4's evidence as to when the offence was detected, reported and eventually when the victim was examined.

3. That, the 1st appellate judge heard the appellant's appeal un- procedurally as he was not accorded an opportunity for rejoinder.

4. That, the 1st appellate judge grossly erred in holding that the prosecution proved the case beyond reasonable doubt. Subsequently, the applicant filed a supplementary memorandum of appeal consisting of the following two grounds as per page 5 of the judgment of the Court: 1. That, the 1st appellate judge upheld the appellant's conviction and sentence on the basis o f a defective charge as the particulars o f the offence did not disclose the words "unlaw ful" before the phrase "carnai knowledge o f one..." which was an essential elem ent or ingredient in the offence o f rape.

2. That, the 1st appellate judge sustained the appellant's conviction and sentence while there was noncompliance o f section 210 (3) o f the CPA, Cap. 20 R.E. 2002. 2 After the appeal had been heard on merit, the Court dismissed the same and upheld the conviction and enhanced the sentence from 30 years imprisonment to life imprisonment. The applicant is still unhappy with his conviction and sentence. Therefore, under rule 66(1) (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules), he has filed a notice of motion supported by his own affidavit calling upon the Court to review its own decision. He is faulting the Court for; one, holding that the applicant was afforded an opportunity to address the Court by way of written submissions while the record of appeal indicates that he was denied such right; two, upholding the conviction despite the fact that the applicant was denied a right to make a rejoinder submission; three, upholding the conviction and sentence despite the fact that it was based on the evidence of a child of tender age which was admitted in violation of the requirement of section 127(7) of the Evidence Act. In the conduct of the appeal, the appellant appeared in person without representation while the respondent Republic enjoyed the services of Ms. Thelesia Mtao, learned State Attorney, With the leave of the Court, the applicant relied on the written

submissions which he earlier on filed in Court. Ms. Mtao presented oral submissions in opposition to the application. In support of the first ground, the applicant submitted that in not affording him an opportunity to submit in reply, the High Court denied him a right of fair hearing. The Court, he further submitted, while holding as a fact that the applicant was not afforded such right, was wrong in observing that the applicant himself ought to have asked for such opportunity. Such finding of the Court, he submitted, was against the provisions of section 366 (1) of the Criminal Procedure Act. Yet on the same point, the applicant submitted that, while according to the record of appeal, the High Court refused the applicant's prayer to argue the appeal by way of written submissions, the Court wrongly observed that the hearing of the appeal was based on written submissions. In effect, he submitted, the applicant was denied his right to be heard under Article 13(6) (a) of the Constitution of the United Republic of Tanzania. In his conclusion, therefore, the Court did not effectively deal with or determine some important issues involved in the appeal. Relying on the cases of Chandrakant Joshubhai Patel v. R [2004] T.L.R. 2018 and Peter Kidole v. R. Criminal Appeal No. 3 of 2011, it was his submission that such failure amounts to errors apparent on the face of the record. On the

second ground, it was the applicant's submission that although it is clear from the evidence that the victim was the child of tender age and did not understand the meaning of oath or affirmation, his evidence, in so far as was not preceded with a promise to tell the truth and not lies, was received in violation of the requirement of section 127(7) of the Evidence Act. In his view, it was wrong for the Court to uphold conviction based on such evidence without re-evaluating and re-appraising the same to ascertain if the victim was telling the truth. In rebuttal, Ms. Mtao submitted in the first place that, for an application for review to stand, it must be established that the grounds thereof fall within the purview of rule 66(1) of the Rules. She submitted that neither of the grounds raised in the notice of motion fall under the said provisions. Instead, she submitted, the same seek to challenge the decision and proceedings of the High Court as if this was an appeal against the decision of the High Court. On top of that, she submitted, the application seeks to fault the substantial correctness of the decision of the Court which is within the domain of an appeal. Citing the cases of Martine Christian @ Msuguri v. R, Criminal Application No. 7 of 2014 and Mashaka Mussa v. R, Criminal Application No. 10/01 of 2018 (both unreported), she urged us to dismiss the application. 5 Before

we consider the merit or otherwise of the application, it may be imperative to expose albeit briefly, the law relating to review by the Court. The review jurisdiction is conferred by section 4(4) of the Appellate Jurisdiction Act which provides that "'The Court o f Appeal sh all have the power to review its own d e c is io n s The scope of the exercise of the power is set out by rule 66(1) of the Rules which read as follows: "6 6 -(l) The Court may review its judgm ent or order, but no application for review shall be entertained except on the follow ing grounds- (a) the decision was based on a m anifest error on the face o f the record resulting in m iscarriage o fjustice; (b) a party was wrongly deprived o f an opportunity to be heard; (c) the court's decision is a nullity; or (d) the court had no jurisdiction to entertain the case; (e) the judgm ent was procured illegally ; or by fraud or perjury." The review jurisdiction, it is trite law, applies on assumption that, the Court would not have acted as it did, had all the circumstances been known. It cannot, therefore, come in where the point in question has been dealt with and answered but the applicant is in disagreement with the view of the judgment. That is what we said in the case of Mirumbe Elias @ Mwita v. 6 R., Criminal Application No. 4 of 2015(unreported) where we observed inter alia'. " THREE, in review jurisdiction

, mere disagreem ent with the view o f the judgm ent cannot be the ground for the invoking the same. A s lo n g a s th e p o in t is a lre a d y d e a lt w ith a n d answ ered, th e p a rtie s a re n o t e n title d to ch a lle n g e th e im p u g n ed ju d g m en t in th e g u ise th a t an a lte rn a tiv e view is p o ssib le u n d e r re v ie w ju risd ic tio n (See B LU E LIN E EN TER PR ISES LTD . vs. THE EA ST A FR IC A N D EVELO PM EN T B A N K (su p ra ) (EADB), and KAMLESH VARMA vs. MAYAWATI AND OTHERS, Review Application No. 453 o f 2012" See also Twaha Michael Gujwile v. Kagera Farmers Cooperative Bank Ltd, Civil Application No. 156/04 of 2020 (unreported), Sabato Thabiti & Another v. R, Criminal Application No. 17/04 of 2020 (unreported), Martine Christian @ Msuguri v. R (supra) and Mashaka Mussa v. R. (supra). From the notice of motion, affidavit and written submissions, it would appear, the grounds for review is based on item (b) and (a) of rule 66(1) namely denial of a right to be heard and manifest errors apparent on the face of the record. The complaint by the applicant is that, he was denied, by the High Court, a right to submit in rejoinder. The complaint was raised in the appeal to the Court as a ground of appeal. The Court having considered the arguments from both sides established that, the complaint was incapable of reversing the impugned decision. The

applicant contends that the Court was wrong in so deciding. The learned State Attorney submitted that the complaint does not fall within the scope of review. We entirely agree with her. The reason being that, the complaint as to denial of a right to be heard was in respect of the decision of the High Court and not the Court. At the Court, the complaint came as a ground of appeal and both parties were duly heard by the Court before the determination of the same. Therefore, applying the principle in Mirumbe's case (supra), whether the Court was wrong or not in determining the ground cannot in anyway amount to a denial of a right to be heard. The same applies to a complaint that, the applicant was denied a right to file written submissions. In the circumstances, therefore, the application cannot succeed on the ground of denial of a right to be heard. We now proceed with the complaint that the decision contained manifest errors apparent on the face of the record. What amounts to errors apparent on the face of the record was considered in the cerebrated case of Chandrakant Joshubhai Patel v. R (supra) where the Court fully adopted the following commentary in MULLA, 14th Edition pages 2335-36 thereof: "An error apparent on the face o f the record m ust be such as can be seen by one who runs and reads, that is, an obvious and patent m istake and not som ething which can be established

by a long drawn process o f reasoning on points there may be conceivably be two opinions [State o f Gujarat v. Consumer Education & Research Centre (1981) AIR Guj. 223]". The applicant, in the first place, relates the claim with the complaint that, the statement of the Court that the hearing of the appeal at the High Court was based on written submissions is not founded on the proceedings. At the High Court, he clarified, the applicant's request to have the appeal argued by way of written submissions was refused and the High Court directed that the matter proceeds by oral submissions. Our reading of the judgment in question does not suggest that the said statement was by itself a determination of any of the grounds in the appeal. It was a mere factual narration of what transpired at the High Court. The substance of the decision was that the applicant submitted in chief in support of his appeal. This has never been an issue. The complaint had been that the applicant was denied a right to make a rejoinder submission. In the premises, whether applicant's submissions in chief was in writing or oral cannot lead to any failure of justice. Therefore, much as it may be true that there was a manifest error on the face of record in the respective statement, the same is inconsequential and cannot fall within the ambit of paragraph (a) of subrule (1) of rule 66 of the Rules. There was also

a complaint that the applicant was wrongly convicted based on the evidence of a child of tender age which was received without compliance with the requirement of section 127 (7) of the Evidence Act. The line of the contention is that, though it is clear that the said witness did not understand the meaning of oath, her testimony which was made without oaths or affirmation, was not preceded with a promise to tell the truth and not lies. In the judgment in question, the Court having heard from both parties resolved the issue as follows: " In our view, much as the record o f appeal does not show that the witness made the promise, so long as the witness indicated to the court to know the meaning o f telling the truth, that was tantam ount to prom ising that she w ill te ll the truth." From the above statement, it very clear that the Court had it in mind while resolving the question that the promise to tell the truth in the case was implied by the fact that the witness indicated to the Court that she would tell 10 the truth. Whether the Court was wrong in so implying, cannot be a subject of review by the Court itself as that is a mere disagreement on the part of the applicant with the judgment which, as we held Mirumbe's Case {supra), cannot constitute a ground for review. In our opinion, therefore, the applicant has failed to establish his grounds of review. The application is, therefore, without merit and it is hereby dismissed. DATED at Dar Es Salaam this 17th day of July, 2023. R. K. MKUYE

JUSTICE OF APPEAL L.J. S. MWANDAMBO

JUSTICE OF APPEAL I. J. MAIGE

JUSTICE OF APPEAL The ruling delivered this 18th day of July, 2023 in the presence of the Applicant appeared in person via Video link from Ukonga Prison and Mr. Cathbert Mbiling'i, learned State Attorney for the Respondent, is hereby certified as a true copy of the original.