20170823 TZCA Tabora

) iii THE COURT OFAPPEAl OF TANZANIA

AT TABORA (CORAM: LUANDA, J.A., MMILLA, J.A. And MWARIJA, ·l.A.) CRIMINAL APPLICATION NO. 38 OF 2014 RAJ ABU YUSUPH wa • 11111 • :t1! • 111 c • • • ■ ~ a•ii- ~ ■ -.11 •1111 ••• ■ •••ii ■■ ■ s ■ • •• ■■•■■■■ a ■■■■■■-■~•~•·•• ■ ■■ a APPLICANT

VERSUS THE REPUBLIC •••.•••..•..••••••••••.•••.•••..••••••.••••••••••••••.••••••••••••••• RESPONDENT (Application for review froin the judgment pf the Court of Appeal of Tanzania At Tabora) (Kimaro, JA, Mbarouk, JA and Massati,JA) Dated 25 th day of October, 2009 In Criminal Appeal No. 457 of 2005

RULING OF THE COURT 22 nd & 24th August, 2017 MMILA, JA.: In this application, Rajabu Yusuph (the applicant), is requesting the Court to review its decision dated 29.10.2009 in Criminal Appeal No. 457 of 2005. The application is brought under Rules 42 (1), 48 (1), (2) and 66 (1) (a) and (b) of Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit sworn by the applicant himself. 1 ln the case from whicl1 the jUdgrnent which is the sdoject "c'.lf review stems, the applicant was faced with the charge of rape in the District Court of Tabora. He unsuccessfully challenged conviction and sentence in the High Court of Tanzania at Tabora, and again to the . Court, which is why he filed the present application for review. On the day of hearing, the appellant appeared in person and was not represented, whereas the respondent Republic enjoyed the services of Ms Juliana Moka, learned Senior State Attorney. She filed an affi<:lavit in reply in which she is opposing the application. The applicant's notice of motion has raised three grounds as follows; one that, the courts below erred in not evaluating the ·evidence as a whole in reaching at the conclusion, and the Court wrongly upheld the lower courts! decrsion; two that, the lower courts erred in ·be;icving:- that PW3 was a credible witness, and that the Court misdirected itself in upholding the findings of the lower

courts on the point; and three that, the evidence of PW3 was not corroborated by any other independent evidence. 2 I /l f ' 1'. ' !fl his oral suBmission before the ·court, the appilcant who is a 'lay .· t ./ i <' / person, had nothing substantial to say. He however, urged the Court to allow the application on the basis of the grounds he raised in the notice of motion. On her part, Ms Maka submitted that the three grounds raised by the applicant do not conform to what is dictated under Rule 66 (1) of the Rules. She buttressed her point by citing the case of Ngasa Nhabi v. Republic, Criminal Application No, 2 of 2014, CAT (unreported). In that case the Court emphasized that the application for review is required to rely on any one or more of the grounds set out in Rule 66 (1) of the Rules. Ms Maka argued that in fact, those ground qualify to be. grounds of appeal rather than grounds in an application for review. She pressed the Court to oism.i~s th~ ,applifation_. ' ••• ,, ~ : .. ~ ,f "i!li,-~t- • • . • • • It is beyond controversy that the grounds of an application for review are required to conform to those set out under Rule 66 (1} of the Rules. That Rule provides that:- 3 /, ~i6 (1) The Court may, h3vie~v lts Judgment or on1elj but no ; / I '/ /, application for review shall be entertained except on the following grounds:- (a) the decision was based on a manifest error on

the face of the record resulting in miscarriage ofjustice; or (b) a party was wrongly deprived of an opportunity to be heard; or ( c) the Court's decision is a f]ullity; or ( d) the Court had no jurisdiction to entertain the case; or ' '' ( e) the Judgment was procured illegal!½ or by fraud or perjury.'' As already pointed out, the applicant cited Rule 66 (l) (a) and (b) of ~. the Rules as being the aspects on which-- he was ' -. -~ .. basing his _arguments. . :--- After carefully considering the three grounds he raised in the notice of motion, we are convinced that none of them establish that the decision of the Court targeted for review was based on a manifest error on the face of the record resulting in mis~arriage of justice; or that the applicant was wrongiy deprived of an opportunity to be heard. Also, his oral submission did not advance his cause. Also, we are constrained to agree 4 I f \, ;:1th M;; 7'r1:0ka that the grounds contained iii the- notice of motion arc I I ,: more of grounds of appeal than grounds for review. As was stated in the f case of Ngasa Nhabi v. Republic (supra), mere dissatisfaction with the decision of the Court cannot be the sole basis for seeking its review - See also the case of Deogratious Nicholas @ Jeshi and Another · v. Republic, Criminal Application No. 1 of 2014, CAT (unreported). We wish to point out in passing that the Court cannot sit

in appeal against its own decision. See al~o the case of Lakhamshi Brothers Ltd - v. Raja Sons, (1966) E.A 313 in which it was stated in that case that :- ''In a review the Court should not sit on appeal against its own judgment in the same proceedings. In a review the Court has inherent jurisdiction to read its judg,77ent-in ordei to give effect to its mc1nifest intent/an on what clearly would have been the intention of the Court had some matter not been inadvertently omitted.'' [Emphasis added.] 5 r• . ► 1- ;~ / .1 .. '-'I '," ' :/i' I ~u .. , ,I, l 1' In vievv of what we have covered above~ we agree vvith Ms Moka that this application is devoid of merit. We are constrained to, and we accordingly dismiss it. We accordingly order. DATED at TABORA this 23 rd day of August, 2017. B. M. LUANDA

JUSTICE OF APPEAL B. M. MMILLA

JUSTICE OF APPEAL A.G. MWARIJA

JUSTICE OF APPEAL I certify that this is a true copy of the original. --, ,L_. • • ~- o, ~•. ~ -- ~ P.W. BAMPIKYA

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL 6