CRIMINAL APPLICATION NO 06 01 OF 2022 PETER SAGADGE KASHUMA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: WAMBALI. J.A.. MASHAKA, 3.A. And MASOUP. J-A.l CRIMINAL APPLICATION NO. 06/01 OF 2022 PETER SAGADEGE KASHUMA .......... ........................................... APPLICANT VERSUS THE REPUBLIC......................................... ............. ........ ......RESPONDENT (Application for review of the decision of the Court of Appeal of Tanzania at Dar es Salaam) (Wambali, Mwandambo And Mashaka. J3A.^ Dated the 14th day of December, 2021 in Criminal Appeal No. 219 of 2019 RULING OF THE COURT 11th June & 7th August, 2024 MASOUP, 3.A.: The applicant was convicted of the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code Cap. 16 (the Penal Code) and sentenced to life imprisonment by the District Court of Kigamboni. Allegations in respect of which the prosecution evidence was led and found to have proved the charge laid against the applicant was that on 19th June, 2018 at Mwembemdogo area within Kigamboni District in Dar es salaam Region, the applicant had carnal knowledge of a girl aged 17 years who testified as PW1. Against the conviction and sentence imposed by the trial court, the applicant appealed to the High Court. The High Court dismissed the appeal against the conviction. It however allowed the appeal with regard to the severity of the sentence and substituted for it a sentence of thirty years imprisonment. Still aggrieved by the concurrent finding of facts by the two courts below that found him guilty as charged, the applicant unsuccessfully preferred a second appeal to this Court on the following grounds: first, failure of the trial court to comply with section 210 (1) (a) and (3) of the Criminal Procedure Act, Cap. 20; second, reliance on exhibit P2 which was not read out; third, failure of the appellant to identify the victim in the trial court; fourth, the prosecution evidence was not corroborated; fifth, the appellant was not given opportunity to close his case; and sixth, that the prosecution case was not proved beyond reasonable doubt. It is apparent at page 5 of the impugned judgment that at the hearing of the appeal, the applicant adopted his grounds of appeal and his written submission in support of the appeal and requested the Court to find that the appeal is merited. In the end, despite disregarding exhibit P2 having found that it was indeed not read out as complained in the second ground of appeal, the Court was, at page 14 of the judgment, satisfied that the prosecution had proved its case against the applicant beyond reasonable doubt in view of its deliberations against the first, third, fourth and fifth grounds of appeal. The Court, therefore, dismissed the applicant's appeal, save for the second ground of appeal which it allowed. Since the applicant was aggrieved by the decision of this Court which upheld the conviction and the imposed sentence of thirty years imprisonment, he has moved the Court to review its own decision. The application is thus brought under section 4 (4) of the Appellate Jurisdiction Act and rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The notice of motion sets out three grounds of review which are all hinged on a complaint of manifest error on the face of the record resulting in the miscarriage of justice in terms of rule 66 (1) (a) of the Rules. At the hearing, the applicant was represented by Mr. Joshua Marwa, who was assisted by Ms. Tukelage Bank Kimbita, both learned advocates. The respondent Republic was represented by Ms. Kasana Emilia Maziku, learned Principal State Attorney, who was assisted by Ms. Mwanahamisi Kilongo, learned State Attorney. In the course of his oral submission, Mr. Marwa adopted the affidavit of the applicant supporting the application, and informed the Court that out of the three grounds of review set out in the notice of motion, they would argue only one ground which is to the effect that: "The court did not accord the appellant an opportunity to maintain his rejoinder on matters contested by the respondent the omission which contravened Article 13(6) (a) o f the Constitution o f the United Republic o f Tanzania, 1977 (as amended from time to time) . " Having thus abandoned the other grounds, Mr. Marwa referred us to paragraph 7 of the applicant's affidavit whose wording echoes the contents of the ground of review reproduced herein above. He argued that going by the judgment of the Court, it is evident that the applicant was not given an opportunity to make his rejoinder on matters contested by the respondent Republic. The omission to give the applicant an opportunity to make his rejoinder, according to the learned advocate, means that the applicant was denied his right to be heard contrary to the principles of natural justice. To support his stance, he made reference to the decision of the Court in Petro Robert Myavilwa (Administrator of the Estate of the Late Robert Petro Myavilwa v. Abel Mwalibeti and 4 Others (Civil Application No. 640/06 of 2021) [2024] TZCA 108 (23 February 2024, TANZLII) in which reference was made to the holding of the Court in Mbeya-Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R. 251. In his submission therefore, the omission is a serious irregularity vitiating the entire proceedings in Criminal Appeal No. 219 of 2019. On that account alone, he urged the Court to consider nullifying the proceedings and setting the applicant free. In her reply, Ms. Maziku adopted her affidavit in reply and written submission in reply lodged on 5th June, 2024 to form part of her submission opposing the application. In the main, the learned Principal State Attorney, argued that the failure to afford the applicant an opportunity to make a rejoinder if at all did not deny the applicant the right to be heard. She was of that position because, as far as she was concerned, all grounds of appeal raised and arguments made in support of the appeal by the applicant were duly considered and properly determined by the Court. Ms. Maziku argued in the end that the alleged failure, if at all, did not occasion injustice to the applicant since it is discernible from the impugned judgment that the Court provided a balanced account of the arguments for and against the applicant's appeal. Tlie learned Principal State Attorney relied on Ernest Jackson @ Mwandikaupesi and Another v. Republic (Criminal Application No. 46/01 of 2021) [2023] TZCA 17472 (7 August 2023, TANZLII) and Ramadhani Said Omary v. Republic (Criminal Application No. 87 of 2019) [2022] TZCA 459 (21 July 2022, TANZLII) to support her submission. Rejoining, the learned counsel for the applicant reiterated the applicant's prayer for the application to be granted. He argued that since the respondent did not dispute that the applicant was not afforded an opportunity to make a rejoinder, it goes without saying that she admitted that there was injustice that was occasioned to the applicant warranting this Court to resolve the application in the applicant's favour. Since the applicant is moving the Court to review its own decision, we are minded that rule 66(1) of the Rules not only clothes the Court with powers to review its own decision, but also sets benchmarks by listing the grounds and parameters within which such powers may be exercised. See, for instance, Ernest Jackson @ Mwandikaupesi and Another (supra); Twaha Michael Gujwile v. Kagera Farmers' Cooperative Bank Ltd (Civil Application No. 156 of 2020) [2020] TZCA 1935 (26 August 2020, TANZLII); Patrick Sanga v. Republic (Criminal Application No. 08 of 2011) [2013] TZCA 473 (5 August 2013, TANZLJI); and Chandrakant Joshubhai Patel v. Republic [2004] T.L.R. 218. The issue that we have pondered on as we considered the record before us in relation to the rival submissions of both sides is whether the applicant has made out a case for the Court to review its own decision. We recall that the applicant abandoned all grounds of review save for the one that we have reproduced herein above concerning the complaint on the failure to be afforded an opportunity to make a rejoinder. It is noteworthy, however, that although the applicant's submission is hinged on rule 66 (1) (b) and not 66 (1) (a) of the Rules, which is cited in the notice of motion, we are entitled as we hereby do so to ignore the omission to cite the former in terms of the proviso to rule 48 (1) of the Rules as the Court has jurisdiction to consider granting the orders sought. Having paid a close attention to the cases of Ernest Jackson @ Mwandikaupesi (supra) and Ramadhani Said Omary (supra), we are satisfied that the principle enunciated by this Court in those cases, amongst others, falls within the purview of the circumstances of the instant application where the applicant complains that he was not afforded an opportunity to make a rejoinder and that the said failure has occasioned a failure of justice as he was denied the right to be heard. In the former, whilst referring to the latter in an akin situation as we are having in this application, this Court particularly stated that: "Admittedly, there is no indication in the impugned judgment that the applicants made any rejoinder to the submissions in reply made by the learned State Attorney. That notwithstanding, we however, hasten to point out that, under the circumstances o f this case and considering the manner the proceedings o f this Court are transcribed, the fact that there is no such indication does not necessarily mean that the applicants did not make their respective rejoinder. As the Court stated in Ramadhani Said Omary v. Republic, Criminal Application No. 87/01 o f 2019 (unreported), it is notproper to equate thejudgment o f the Court to a transcription o f the proceedings that unfolded before the Court at the hearing o f appeal. It is on that basis that we strongly believe and take it that the applicants made their rejoinder to the submissions in reply.....When there is a complaint that a party was not given an opportunity to make a rejoinder in an appeal, what is most important is to see whether it is discernible from the impugnedjudgment that the Court provided a balanced account of the arguments for and against the appeal." [Emphasis added] On the above principle, see also the case of Jumanne Kilongola @ Askofu v. Republic (Criminal Application No. 64 of 2020) [2021] TZCA 358 (5 August 2021, TANZLII); and the case of Ally Hussein v. Republic (Criminal Application No.82/01 of 2020) [2023] TZCA 17458 (26 July 2023, TANZLII). Our scrutiny of the impugned judgment in the light of the above test leaves us in no doubt that the applicant's complaint does not hold as a competent ground for review neither under rule 66 (1) (a) of the Rules in 8 respect of which the application was brought nor under rule 66 (1) (b) of the Rules in respect of which the applicant's oral submission is hinged. We note that from pages 5 to 8 of the judgment, the Court dealt with the first ground of the appeal. In so doing, it clearly dealt with rival arguments that were put across before it determined the ground against the appellant There was nothing shown suggesting that the Court did not make a balanced account of the arguments for and against the applicant's appeal. Similarly, from pages 8 to 9 of the impugned judgment, we find that the Court agreed with the concession of the respondent Republic with regard to the second ground of appeal and assigned reasons for doing so before proceeding to allow the ground and disregarding exhibit P2. Furthermore, at pages 9 and 10, the Court dealt with the third ground of appeal referring to the arguments for and against the appeal advanced by the applicant and respondent Republic. Having done so, the Court reasoned in relation to the record of the trial court as to why it found that the ground was not meritorious before dismissing it. Likewise, we have scrutinised pages 10 and 11 of the impugned judgment, where we find how the Court engaged itself with the arguments made by both sides in relation to the issue whether there was corroboration justifying the conviction, notwithstanding disregarding exhibit P2. Having considered and analysed the arguments in the light of what pertained on the record, the Court from pages 11 to 13 of the judgment was clearly of the finding that the fourth ground concerning the absence of corroboration was not supported by the evidence on the record. A similar pattern of providing a balanced account of arguments for and against the applicant's appeal is evident at pages 13, 14, and 15 with regard to the fifth and sixth grounds of appeal. Having scrutinised the impugned judgment as indicated above, we have not found anything either in the affidavit in support or in the oral submission of the learned advocates for the applicant establishing that there was no balanced account of the arguments for and against the applicant's appeal in the said judgment. Accordingly, there is nothing established to warrant this Court to consider exercising its discretion in favour of the applicant in terms of rule 66 (1) (b) of the Rules applied in the applicant's submission. We so find because, it has not been shown that the Court did not deal with all grounds of appeal raised in relation to the arguments for and against the applicant's appeal. Besides, it is also not the complaint of the applicant that he was not accorded an opportunity to be heard in respect of the grounds of appeal that he raised. Rather, his complaint is of not being given an opportunity to make a rejoinder after the respondent's submission 10 in reply, and thus not a complaint about a complete denial of the right to be heard. On the other hand, it is our finding that the balanced account of the rival arguments for and against the applicant's appeal which was provided by the Court and which is apparent in the impugned judgment supports a conclusion that the applicant was sufficiently heard on his grounds of appeal before the decision was made. Indeed, if at all there were such a failure, this Court should have been shown in the affidavit supporting the application that the applicant attempted to request the Court for such an opportunity to make a rejoinder but was refused. Otherwise, the Court should have been informed why the applicant did not bring the failure, if at all, to the Court's attention in the course of the hearing of the appeal as was reasoned by the Court in the case of Maulid Juma Bakari @ Damu Mbaya v. Republic (Criminal Application No. 63 of 2020) [2021] TZCA 334 (29 July 2021, TANZLII). Despite the argument from the bar by the learned advocates for the applicant that the failure to afford the applicant an opportunity to make his rejoinder occasioned a failure of justice on his part, we could not find anything in his affidavit supporting that argument. Neither have we detected any sign in the impugned judgment indicating that there was indeed such a failure that occasioned miscarriage of justice on the part of the applicant. ii In the result, we find no merit in the single ground for review raised by the applicant. The application is on that score not merited. Accordingly, we dismiss it in its entirety. DATED at DAR ES SALAAM this 30th day of July, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Ruling delivered this 7th day of August, 2024 in the presence of the applicant in person and Ms. Beata Kitau, learned Senior State Attorney for the respondent by video conference, is hereby certified as a true copy of the original. 12