rajabu so taratibu vs republic 2017 tzca 250 6 july 2017

IN THE COURT OF APPEAL OF TANZANIA AT MTWARA fCORAM: MBAROUK. J.A.. MUGASHA. 3.A., And MWANGESI. J.A.^ CRIMINAL APPLICATION NO. 18 OF 2015 RAJABU S/O TARATIBU.............................................. APPLICANT VERSUS THE REPUBLIC........................................................ RESPONDENT (Application for Review of the decision of the Court of Appeal of Tanzania at Mtwara) (Mbarouk, J.A, Miasiri. J.A and Mmilla. J.A.’) dated the 12th day of October 2015 in Criminal Appeal No. 237 of 2014 RULING OF THE COURT 3rd & 6thJuly, 2017 MBAROUK, J. A.: The applicant, Rajabu s/o Taratibu is seeking for review of the judgment of the Court (MBAROUK, J.A, MJASIRI, J.A and MMILLA, J.A) in Criminal Appeal No. 237 of 2014 dated 12th October, 2015. In his application made by way of notice of motion under Rules 48(1) and 66(1) of the Court of Appeal Rules, 2009 (the Rules), the applicant has raised two main grounds, namely:- 1. That, the decision was based on the manifest error on the face of the record resulting to miscarriage of justice. 2. The judgment was procured by perjury. In the affidavit in support of the notice of motion sworn by Rajabu Taratibu (the applicant), it was stated that:- "2. That, I was charged with murder C/S 196 o f the penal code Cap. 16 (R.E. 2002) in the District Court o f Lindi, and found guilty o f murder, conviction and sentenced to suffer the mandatory punishment o f death by hanging, before Hon. M.G. (MZUNA).J. o f the High Court o f Tanzania at Mtwara on 4h day o f August, 2014. 3. That, upon being aggrieved by the High Court decision I appealed to the Court o f Appeal o f Tanzania at Mtwara on l ? h o f October, 2015 in criminal appeal No. 237 o f 2014 but my criminal appeal was dismissed entirely before Hon. M.S. MBAROUK, J.A, S. MJASIRI, J.A and B.M. MMILLA, J.A. 4. That, upon being further aggrieved by decision o f the Court o f Appeal o f (T) at Mtwara I pray to lodge my application for review in this court o f appeal to review the court o f appeal decision as well to heave quash aside the conviction and set aside the sentence. 5. That, it will be the interest o f justice if my application for review will be allowed to the court o f appeal o f Tanzania at Mtwara from the original Criminal sessions case No. 33 o f 2013." In this application, the applicant appeared in person, unrepresented and Mr. Ledislaus Komanya, learned Senior State Attorney assisted by Ms. Lulu Twalib Mangu, learned State Attorney represented the respondent/Republic. At the hearing, the applicant opted to allow the learned State Attorney to submit first and if the need arises he will respond thereafter. On her part, Ms. Mangu from the outset indicated not to support the application as there were no grounds for granting review shown in the affidavit in support of the notice of motion. Ms. Mangu added that even if two grounds were mentioned in the notice of motion but no justification was given in the affidavit of the applicant in support of those grounds. Ms. Mangu further added that, review is not an appeal, the applicant has to comply with the requirement stated in Rule 66(1) of the Rules. She said, as the applicant has failed to comply with the mandatory requirement of Rule 66(1) of the Rules, this Review has no merit and deserves to be struck out. As pointed out in the decision of this Court in the case of John Samwel @ Kaboka and Another v. the Republic, Criminal Application No. 12 of 2014 (unreported) where the Court stated that:- "The law governing review o f decisions o f the Court is now sanctioned by a recent amendment to section 4 o f the Appellate Jurisdiction Act Cap. 141 R.E. 2002 by Act No. 3 o f 2016 by the new section 4(4) with effect from 7h July, 2016. But prior to that the Court used to review its decisions under Rule 66 o f the Court Rules which is what is applicable in the present application" As this application was lodged on 20th May, 2016, hence Rule 66(1) of the Rules is the one applicable and the same reads as follows:- "66.-(l) 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 o f the record resulting in the miscarriage o fjustice; or (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; or (e) the judgment was procured illegallyor by fraud or perjury. As shown herein above, Rule 66(1) of the Rules mandatorily direct that no application for review shall be entertained except the five distinct grounds set out are complied with by stating and justifying in the affidavit in support of the notice of motion. It is not enough to state them plainly in the notice of motion, they have to be stated and elaborated in the affidavit in support of the application. In the instant application, the applicant has completely failed to state in his affidavit which among the five grounds stated in Rule 66 (1) (a) - (e) of the Rules are applicable in this application for review so as to justify a grant of an order for review of our decision in Criminal Appeal No. 237 of 2014 dated 12th October, 2015. It is a trite law that review should not be utilized as a back door method to unsucceful litigants to re-argue their case. See Kamlash Varma Vs. Mouawato and Others, Review Application No. 453 of 2012 EAC (unreported). Also an application for review is by no means an appeal in disguise whereby an erroneous decision can be reheard and corrected. See Ngasa s/o Nhabi Vs. Republic, Criminal Application No. 2 of 2014 (unreported) citing Karim Kiama, Vs. Republic, Criminal Application No. 4/2007 (unreported). In the case of Tanzania Transcontinental Co. Ltd Vs. Design Partnership Ltd; Civil Application No. 62 of 1996 (unreported), this Court stated that; " The Court will not readily extend the list of circumstances for review, the idea being that the Court's power o f review ought to be exercised sparingly and only in the most deserving cases, bearing in mind the demand o f public policy for finality o f litigation and for certainty o f the law as declared by the highest Court o f the Land." All said and done, in view of the applicant's failure to state and justify in his affidavit the stated grounds as per Rule 66(1) of the Rules, we are constrained to find the application devoid of merit and we accordingly dismiss it. DATED at MTWARA this 4th day of July, 2017. M. S. MBAROUK JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true cop of the Original. A.H. Msi(mi DEPUTY REGISTRAR COURT OF APPEAL 8